Sparaney v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT SPARANEY,

Plaintiff, CIVIL ACTION NO. 3:20-cv-02054

v. (SAPORITO, M.J.)

KILOLO KIJAKAZI,1 Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM

In this matter, the plaintiff, Robert Sparaney, seeks judicial review

of the final decision of the Commissioner of Social Security denying his

application for disability insurance benefits, pursuant to 42 U.S.C.

§ 405(g). The matter has been referred to the undersigned United States

magistrate judge on consent of the parties, pursuant to 28 U.S.C. § 636(c)

and Fed. R. Civ. P. 73.

1 Kilolo Kijakazi became the Acting Commissioner of Social

Security on July 9, 2021. She has been automatically substituted in place

of the original defendant, Andrew Saul. See Fed. R. Civ. P. 25(d); see also

42 U.S.C. § 405(g) (action survives regardless of any change in the person

occupying the office of Commissioner of Social Security). The caption in

this case is amended to reflect this change.

I. BACKGROUND

On June 17, 2014, Sparaney protectively filed an application for

disability insurance benefits, asserting a disability onset date of June 24,

2013. His claim was initially denied by state agency reviewers on

December 18, 2014. The plaintiff then requested an administrative

hearing.

A hearing was subsequently held on January 3, 2017, before an

administrative law judge, Therese A. Hardiman (the “ALJ”). In addition

to the plaintiff himself, the ALJ received testimony from an impartial

vocational expert, Josephine A. Doherty. The plaintiff was represented

by counsel at the hearing.

On March 20, 2017, the ALJ denied Sparaney’s application for

benefits in a written decision. The plaintiff sought further administrative

review of his claims by the Appeals Council, and on July 31, 2018, the

Appeals Council vacated the ALJ’s March 2017 decision and remanded

the matter for further proceedings. In particular, the ALJ was instructed

to re-evaluate the claimant’s mental impairments, re-evaluate the

claimant’s physical residual functional capacity, and obtain additional

vocational expert evidence if necessary.

A second video hearing was subsequently held on January 25, 2019,

before the same ALJ. In addition to the plaintiff himself, the ALJ received

testimony from an impartial vocational expert, Carmine Abraham. The

plaintiff was represented by counsel at this second hearing.

On July 2, 2019, the ALJ denied Sparaney’s application for benefits

once again in a second written decision. The ALJ followed the familiar

five-step sequential evaluation process in determining that Sparaney

was not disabled under the Social Security Act. See generally Myers v.

Berryhill, 373 F. Supp. 3d 528, 534 (M.D. Pa. 2019) (describing the five-

step sequential evaluation process). At step one, the ALJ found that

Sparaney had not engaged in substantial gainful activity during the

period between his alleged disability onset date, June 24, 2013, and his

date last insured, December 31, 2018.2. At step two, the ALJ found that

Sparaney had the severe impairments of: degenerative disc disease /

degenerative joint disease of the lumbar spine; status post lumbar fusion;

major depressive disorder; and panic disorder.

At step three, the ALJ found that Sparaney did not have an

impairment or combination of impairments that meets or medically

2 See generally 42 U.S.C. § 423(c)(1); 20 C.F.R. § 404.130.

equals the severity of an impairment listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1. In addition to his physical impairments, the ALJ

considered Sparaney’s limitations in four broad functional areas as a

result of his mental disorders, finding moderate limitations in his ability

to concentrate, persist, or maintain pace and finding mild limitations in

his ability to understand, remember, or apply information, his ability to

interact with others, and his ability to adapt or manage oneself. See

generally 20 C.F.R. § 404.1520a(c) (explaining functional limitation

rating process for mental impairments); 20 C.F.R. pt. 404, subpt. P,

app.1, § 12.00(E) (explaining the four areas of mental functioning); id.

§ 12.00(F) (explaining process for using paragraph B criteria to evaluate

mental impairments).

Between steps three and four of the sequential-evaluation process,

the ALJ assessed Sparaney’s residual functional capacity (“RFC”). See

generally Myers, 373 F. Supp. 3d at 534 n.4 (defining RFC). After

evaluating the relevant evidence of record, the ALJ found that Sparaney

had the RFC to perform “light work” as defined in 20 C.F.R.

§ 404.1567(b),3 with the following limitations:

[H]e requires a sit/stand option at will or direction of

the individual with occasional left lower extremity

pushing/pulling, occasional climbing, balancing,

stooping, kneeling, crouching[,] and crawling, but

never climbing on ladders. He must avoid vibrations

and hazards, such as heights and moving machinery.

The claimant is limited to unskilled work activity . . .

that is low stress, defined as involving only occasional

decision-making and only occasional changes in the

work setting.

(Tr. 24.)

In making these factual findings regarding Sparaney’s RFC, the

ALJ considered his symptoms and the extent to which they could

reasonably be accepted as consistent with the objective medical evidence

and other evidence of record. See generally 20 C.F.R. § 404.1529; Soc. Sec.

Ruling 16-3p, 2017 WL 5180304 (revised Oct. 25, 2017). The ALJ also

considered and articulated how she weighed the various medical opinions

in the record. See generally 20 C.F.R. § 404.1527; Soc. Sec. Ruling 96-2p,

1996 WL 374188.

At step four, based on this RFC and on testimony by the vocational

3 The Social Security regulations define “light work” as a job that

“involves lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).

expert, the ALJ concluded that, during the period between his alleged

disability onset date and his date last insured, Sparaney was unable to

perform his past relevant work as actually and generally performed.

At step five, the ALJ concluded that, during the period between his

alleged disability onset date and his date last insured, Sparaney was

capable of performing other jobs that exist in significant numbers in the

national economy. Based on his age, education, work experience, and

RFC, and based on testimony by the vocational expert, the ALJ concluded

that Sparaney was capable of performing the requirements of

representative occupations such as folder, DOT # 369.687-018, sorter,

DOT # 222.687-014, and inspector, DOT # 762.687-014. Based on this

finding, the ALJ concluded that Sparaney was not disabled for Social

Security purposes.

The plaintiff sought further administrative review of his claims by

the Appeals Council, but his request was denied on September 10, 2020,

making the ALJ’s July 2019 decision the final decision of the

Commissioner subject to judicial review by this court.

The plaintiff timely filed his complaint in this court on November

5, 2020. The Commissioner has filed an answer to the complaint, together

with a certified copy of the administrative record. Both parties have filed

their briefs, and this matter is now ripe for decision.

II. DISCUSSION

Under the Social Security Act, the question before this court is not

whether the claimant is disabled, but whether the Commissioner’s

finding that he or she is not disabled is supported by substantial evidence

and was reached based upon a correct application of the relevant law. See

generally 42 U.S.C. § 405(g)(sentence five); id. § 1383(c)(3); Myers, 373 F.

Supp. 3d at 533 (describing standard of judicial review for social security

disability insurance benefits and supplemental security income

administrative decisions).

Sparaney asserts on appeal that the ALJ’s decision is not supported

by substantial evidence because: (1) the ALJ failed to properly evaluate

a medical opinion by a consultative examining physician; (2) the ALJ

failed to properly evaluate a medical opinion by consultative examining

psychologist; and (3) the ALJ failed to consider evidence from a treating

physician recommending that Sparaney undergo further back surgery.4

4 The plaintiff’s brief articulated two generalized claims of error: (1)

the ALJ erred in finding that Sparaney did not meet listings 12.04 or

(continued on next page)

A. Evaluation of Medical Opinions

The plaintiff contends that the ALJ erred in her evaluation of the

medical opinions provided by a consultative examining physician, Jay

Willner, M.D., and a consultative examining psychologist, John Laurence

Miller, Ph.D.

1. Evaluation of Examining Physician Opinion

The plaintiff contends that the ALJ erred in her evaluation of the

opinion of an examining physician, Dr. Willner, who performed a medical

examination of Sparaney on November 12, 2014, at the request of the

state agency. The plaintiff contends that the ALJ erred in assigning only

“some weight” to Dr. Willner’s opinion with respect to certain functional

limitations, which may have been dispositive of Sparaney’s ability to

perform work in the occupations identified by a vocational expert in

connection with step five of the sequential evaluation process.

At the request of state agency reviewers, Dr. Willner conducted a

consultative internal medicine examination of Sparaney on November

12.06; and (2) the RFC assigned to Sparaney by the ALJ is not based on

substantial evidence. Although not clearly articulated by plaintiff’s

counsel, a close reading of the plaintiff’s brief reveals that both of these

very generalized grievances rest on the three specific errors we have

articulated above.

12, 2014. In his examination report, Dr. Willner noted that Sparaney had

experienced a work-related back injury, which involved herniation in the

lumbar region. After first attempting to treat it with physical therapy,

Sparaney underwent a lumbar fusion in July 2014. At the time of the

examination, Sparaney reported left leg numbness and pain and

difficulty walking. Sparaney had attempted physical therapy but was

unable to tolerate it. Pain management with injections was attempted,

but Sparaney had an allergic reaction. Sparaney was unable to treat with

opiate pain medications due to a history of pain medication addiction, for

which he was being treated with suboxone. Sparaney also had a recent

diagnosis of hepatitis C, for which he had not received any treatment.

Sparaney reported living with his fiancée, and he reported being unable

to do any activities of daily living without assistance. (Tr. 555–58.)

On examination, Dr. Willner observed Sparaney’s gait, noting that

he took short, slow, cautious steps without assistance of his cane, and

slightly larger but still cautious steps with a cane. Sparaney was unable

to walk on his heels and toes due to poor balance and pain. He was only

able to do a minimal squat—less than half. His stance was “hunched

over.” Sparaney needed no help getting on and off the exam table, and he

was able to rise from a chair with difficulty. Dr. Willner found no

scoliosis, kyphosis, or abnormality in the thoracic spine. Straight leg

raise test on the right side was positive at 10 percent, confirmed sitting.

Straight leg raise test on the left side was positive at 20 percent,

confirmed sitting. Dr. Willner found no evident joint deformity. He found

joints to be stable and nontender, with no redness, heat, or effusion. Dr.

Willner recorded a diagnosis of low back pain with a guarded prognosis.

(Id.)

Together with his examination report, Dr. Willner prepared a

medical source statement of ability to do physical work-related activities,

in which he provided his medical opinion with respect to Sparaney’s

functional limitations. In this statement, Dr. Willner found that

Sparaney was capable of lifting or carrying up to 20 pounds occasionally,

but no amount of weight frequently. He found that Sparaney could sit for

a full eight hours per workday, stand for up to two hours per workday,

and walk for up to 30 minutes per workday, provided he was permitted

to change positions after one hour of sitting, ten minutes of standing, or

five minutes of walking. He found that Sparaney’s use of a cane was

medically necessary, and that Sparaney was unable to ambulate more

than 10 feet without it. He found that Sparaney could occasionally

handle, finger, feel, push, or pull with either hand, but he could never

reach with either hand. He found that Sparaney could only occasionally

use his right foot to operate foot controls, and he could never use his left

foot to operate foot controls; in support, he referenced his examination

findings that Sparaney had exhibited 4/5 strength in his right lower

extremity, but only 3/5 strength in his left lower extremity. Dr. Willner

found that Sparaney could occasionally stoop or crawl, but he could never

balance, kneel, crouch, or climb stairs, ramps, ladders, or scaffolds. He

found that Sparaney could tolerate frequent exposure to vibrations, but

only occasional exposure to moving mechanical parts, extreme

temperatures, humidity or wetness, and dust, odors, fumes or other

pulmonary irritants, and no exposure at all to unprotected heights or

operating a motor vehicle. (Tr. 559–64.)

When a non-treating medical source provides a medical opinion, the

ALJ is required to consider it and decide what weight to give to it. See 20

C.F.R. § 404.1527(c). The following factors must be considered to

determine the appropriate weight to which the opinion is entitled: (1) the

length of treatment and frequency of examination; (2) the nature and

extent of the treatment relationship; (3) the opinion’s support by medical

evidence; (4) the opinion’s consistency with the record as a whole; and (5)

the treating physician’s specialization. 20 C.F.R. § 404.1527(c)(2)–(5).

None of these factors may be omitted or disregarded by the ALJ in

considering the weight of the opinion. See Casillas v. Astrue, 671 F. Supp.

2d 635, 643–44 (E.D. Pa. 2009) (stating that the ALJ “must consider” the

factors set forth in 20 C.F.R. § 404.1527(c) in determining what weight to

give a medical opinion); Waldron v. Astrue, No. 1:07-CV-2040, 2008 WL

4452350, at *1 (M.D. Pa. Sept. 30, 2008) (same). In addition, the ALJ

must consider any other factors that tend to support or contradict the

opinion, but only if brought to his or her attention. 20 C.F.R.

§ 404.1527(c)(6).

The ALJ clearly considered Dr. Willner’s opinion, reviewing his

findings in detail, and noting that his findings are not duplicated

anywhere else in the record, including Sparaney’s treatment records. (Tr.

27.) Ultimately, the ALJ found Dr. Willner’s opinion to be entitled only

to “some weight.” (Tr. 32.) In support, the ALJ stated:

[Dr. Willner’s] finding of light exertional lifting and

carrying[5] and left pushing and pulling is well

supported and included in the established residual

functional capacity assessment. The balance of the

opinion including the standing and walking

limitations, remaining push/pull, reach, complete

postural limitations and environmental limitations are

not explained with signs or laboratory findings, no[t]

supported or consistent with his reported examination

findings and are afforded little weight.

(Id.) The ALJ also provided further, fairly extensive—albeit somewhat

incoherent—elaboration on the findings that she afforded “little weight,”

particularly concerning the consultative examining physician’s finding

5 Notwithstanding this characterization by the ALJ, we note that

Dr. Willner’s findings with respect to Sparaney’s ability to lift and carry

was not consistent with “light work” as defined by the agency’s

regulations. While Dr. Willner found that Sparaney could lift or carry up

to 20 pounds occasionally, he also found that Sparaney could lift or carry

no amount of weight frequently. Cf. 20 C.F.R. § 404.1567(b) (“Light work

involves lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds.”) (emphasis added). Thus,

Dr. Willner’s findings are consistent with “sedentary work” at most. See

id. § 404.1567(a) (“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.”). This error, however, is harmless, as the

record also includes the medical opinion of a state agency medical

consultant, Leo P. Potera, M.D., who found that Sparaney was capable of

lifting or carrying up to 20 pounds occasionally with frequent lifting or

carrying of up to 10 pounds. (Tr. 223.) The ALJ considered Dr. Potera’s

opinion and afforded it “great weight.” (Tr. 32.) The plaintiff does not

challenge the evaluation of Dr. Potera’s opinion in this appeal. Thus,

notwithstanding Dr. Willner’s more restrictive lift/carry findings, there

is substantial evidence in the record to support the ALJ’s finding that

Sparaney was capable of performing light work.

that Sparaney needed to use a cane to ambulate:6

In this case, [the claimant] is seen for a one-time

consultative examination by an evaluating, not

treating source. [Dr. Willner] saw him once, did not

review part or all of the claimant’s records and did not

perform any testing (such as functional capacity,

imaging[,] or other testing) and relied exclusively upon

the claimant and his fiancée’s self-reporting. [Dr.

Willner’s] exam findings note[] [that] he does not

appear to be in “painful distress” and his gait is short

slow cautious steps without assistance of the cane and

with his cane takes cautious steps with slightly larger

gait. He is able to rise from the chair without difficulty

and with no reference to need for assistance of a cane

or other assistive device. Strength is reported to 3/5 on

the left and 4/5 on the right with no sensation loss,

positive [straight leg raise] on the right at 10 degrees

and left at 20 degrees . . . , no joint deformities, intact

reflexes[,] and no neurological deficits. Otherwise, his

findings are reported to be normal. Nowhere in this

evaluation report does Dr. Willner state that a cane or

other assistive devi[c]e is medically necessary or

require[d] for ambulation, weight bearing[,] or balance.

Instead, he checks a box in the medical source

statement and offers no support in terms of signs or

laboratory findings to support his conclusion. As noted

above, the claimant was fully capable of ambulating

without the cane at this examination and there is no

evidence in the doctor’s report or opinion establishing

the necessity of the same reported by the doctor which

would be based on actual signs or laboratory findings[.]

There is no evidence adduced by the doctor identifying

why the cane would be necessary. The opinion as to

6 This passage appears to be in response to the mandate in the

Appeals Council’s order remanding the case for further consideration of

this and other issues.

being medically necessary by a one-time evaluator does

not establish the basis upon which this opinion is

formed such as fracture, muscle disorder,

amputation[,] or neurological condition identified to

support the need for an assistive device nor does the

doctor identify if the same is for weight bearing,

ambulation[,] or balance. Beyond this, the doctor also

checks the box that the claimant would be able to carry

things in his other hand. As such, the undersigned

finds that the doctor’s opinion is not well supported or

consistent with his own findings. Again, Dr. Willner

did not prescribe the cane, did not undertake a review

of records to make or set forth and support his checked

box opinion[,] and is not a treating source with

longitudinal contact and experience with the claimant

upon which this antalgic gait and [this] use of the cane

is noted by his providers, however, there is no evidence

in the other providers[’] records that the cane was

prescribed at the time of the consultative examination

in November 2014 or that i[t] was well supported by

the provider who later prescribed the cane in June

2016 upon his first appearance at RediCare.

Longitudinally, as reviewed above, Dr. Willner’s check

the box opinion of the medical[] necessity of a cane is

clearly not well supported or consistent with the

longitudinal evidence of record. As noted above by his

treating source note of January 2015 report he is doing

well without back or leg pain, he denied weakness and

numbness and feels he is improving with water

therapy. His gait is reported to be normal and

unantalgic[.] There is no reference to his use of a cane.

He is noted to have no pain on range of motion of the

hip, but did have expected limited lumbar range of

motion and mild discomfort on flexion and extension.

His sensation was intact, his strength was 5/5 in all

muscle groups bilaterally and negative straight raise

bilaterally. As such, limited weight can be afforded Dr.

Willner’s opinion as to the use of the cane and medical[]

necessity for the same.

(Tr. 29–30 (citations omitted).)

In determining the amount of weight to give Dr. Willner’s opinion,

the ALJ here clearly articulated her consideration of factors (1) and (2),

expressly describing Dr. Willner as a “consultative examiner” (Tr. 32)

who saw Sparaney “for a one-time consultative examination” (Tr. 29)

only. With respect to factors (3) and (4), the ALJ’s decision clearly

documents her consideration of the opinion’s lack of support by medical

evidence, and its inconsistency with the record as a whole. (Id.) There is

no apparent indication in the record of Dr. Willner’s medical

specialization. In addition to the enumerated factors, the ALJ considered

the nature of the form report by which Dr. Willner’s opinion was

conveyed, which courts have recognized as generally entitled to little

weight in this context.7 No additional factors appear to have been

brought to the ALJ’s attention for consideration.

Accordingly, we find that there is substantial evidence in the

administrative record to support the ALJ’s findings that Dr. Willner’s

7 See, e.g., Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)

(“Form reports in which a physician’s obligation is only to check a box or

fill in a blank are weak evidence at best.”).

opinion with respect to standing and walking limitations, pushing,

pulling, and reaching limitations, postural limitations, environmental

limitations, and the medical necessity of the use of a cane to ambulate

were entitled to “little weight,” and her determination of the weight given

to Dr. Willner’s opinion was adequately explained and otherwise based

on a correct application of relevant law.

2. Evaluation of Examining Psychologist Opinion

The plaintiff contends that the ALJ erred in her evaluation of the

opinion of an examining psychologist, Dr. Miller, who performed a

psychiatric evaluation of Sparaney on November 12, 2014, at the request

of the state agency. The plaintiff contends that the ALJ erred in assigning

“little weight” to Dr. Miller’s opinion with respect to mental functional

limitations, which may have been dispositive of whether Sparaney had

an impairment or combination of impairments that met or equaled the

severity of the listed impairments at step three of the sequential

evaluation process.

At the request of state agency reviewers, Dr. Miller conducted a

psychiatric evaluation of Sparaney on November 12, 2014. In his

evaluation report, Dr. Miller noted that Sparaney was currently treating

with a psychiatrist, Dr. Leslie Seiden, whom he had been seeing monthly

for more than five years. He noted that Sparaney reported difficulty

sleeping, a loss of appetite, and depression that had become severe since

his back surgery in September 2014. Sparaney reported feeling depressed

all the time, with symptoms including crying spells, loss of usual

interests, fatigue, loss of energy, and diminished self-esteem. Sparaney

reported excessive apprehension and worry, with panic attacks occurring

three times per week on average. Sparaney reported a history of

analgesic medication abuse, which had led him to refuse to take analgesic

medication now in spite of severe back pain due to his concerns about a

relapse. Sparaney reported dressing, bathing, and grooming himself, but

only with help. He reported that his fiancée did the cooking, cleaning,

laundry, shopping, and money management. Sparaney reported that he

could not take public transportation himself or drive, and he had only one

friend. He reported getting along well with his family. Daily activities

included watching television and listening to the radio, but no hobbies.

(Tr. 545–49.)

On examination, Dr. Miller observed that Sparaney exhibited a

cooperative demeanor with apparently poor social skills due to what

appeared to be significant cognitive deficits. Sparaney presented with a

disheveled mode of dress and poorly groomed. Eye contact was very poor,

with his gaze downcast for almost the entire evaluation. Sparaney’s

speech was mumbled, his expressive language evidenced significant

word-finding deficits, and his receptive language was adequate.

Sparaney’s thought processes were coherent and goal directed with no

evidence of hallucinations, delusions, or paranoia. His affect was severely

depressed, his mood was dysthymic, and his sensorium was clear. Dr.

Miller observed that Sparaney’s orientation was impaired as to place and

time. He found Sparaney’s attention and concentration to be “[m]ildly

impaired due to anxiety,” and Sparaney’s memory skills to be “[s]everely

impaired due to emotional distress secondary to depression and

suspected cognitive deficits.” Dr. Miller noted that Sparaney’s

intellectual functioning was below average, with a somewhat limited

general fund of information. Sparaney’s insight was fair and his

judgment good. (Id.)

Based on this evaluation, Dr. Miller found that psychiatric and

cognitive problems may significantly interfere with Sparaney’s ability to

function on a daily basis. He diagnosed Sparaney with major depressive

disorder, single episode, panic disorder, pain disorder due to

psychological and medical factors, substance use disorder in sustained

remission, and rule-out major neurocognitive disorder, with a guarded

prognosis “given what appear to be quite serious problems.” Dr. Miller

recommended that Sparaney continue with his current psychiatrist and

psychological treatment. (Id.)

Together with his examination report, Dr. Miller prepared a

medical source statement of ability to do mental work-related activities,

in which he provided his medical opinion with respect to Sparaney’s

mental functional limitations. In this statement, Dr. Miller found that

Sparaney had marked limitations in his ability to understand,

remember, and carry out instructions due to the severe memory deficit

observed in evaluation. This included marked limitations in his ability to

understand, remember, and carry out both simple and complex

instructions, and his ability to make judgments on both simple and

complex work-related decisions. Dr. Miller also found that Sparaney had

marked limitations in his ability to interact appropriately with others

due to pain and depression preventing normal interaction. This included

marked limitations in his ability to interact appropriately with

supervisors, coworkers, or the public and his ability to respond

appropriately to usual work situations and to changes in a routine work

setting. Dr. Miller further found that Sparaney was unable to “perform

any daily living without assistance” based on his self-reported history.

(Tr. 550–52.)

The ALJ clearly considered Dr. Miller’s opinion, reviewing his

findings in detail at various points throughout her decision. (Tr. 21–22,

26, 30–31.) Ultimately, the ALJ found Dr. Miller’s opinion to be entitled

to “little weight.” (Tr. 30.) In support, the ALJ stated:

There is no explanation in terms of signs and

laboratory findings to support each marked

limitation[]. The doctor is not a treating source and

claimant only saw him once. The doctor seems to have

relied exclusively upon the claimant’s self-reporting

and not upon any actual objective observation and

laboratory finding. Further, there is no evidence that

the doctor’s findings are confirmed or reported

anywhere else in the longitudinal record. Thus,

longitudinally, the doctor’s opinion is clearly not well

supported or consistent with the evidence of record.

The undersigned notes that one would expect an

individual with marked limitations to have required or

at least been referred for psychological or psychiatric

evaluation, work up[,] and treatment. [H]ere we have a

dual diagnosis substance abuse treatment that the

claimant is engaging in. He is not getting any

individual therapy or counseling for a mental

impairment. One would expect this individual would

have required inpatient hospitalization, partial

hospitalization[,] or other form of more intensive

mental health intervention[.] [W]e do not have that

here. Further, one with marked limitations in social

functioning would be noted by his other providers with

difficulties in interacting or note other social function

limitations between the claimant, themselves[,] and

their staff. This is clearly absent in the longitudinal

evidence of record. The claimant’s own testimony does

not support marked limitations. The claimant sees Dr.

Seiden for his Suboxone supply and attends a group

session once a month. He takes medications and

testified he gets along good with his girlfriend and with

people in general. He did not identify any issues in his

ability to interact with anyone and the longitudinal

record is devoid of any such evidence. As such, little

weight can be afforded this opinion as it is clearly not

well supported on the face of the opinion and is clearly

not well supported or consistent with the doctor’s own

evaluation or the longitudinal evidence of record.

(Tr. 30–31.)

In determining the amount of weight to give Dr. Miller’s opinion,

the ALJ here clearly articulated her consideration of factors (1) and (2),

expressly describing Dr. Miller as a “consultative psychological

examiner” who “is not a treating source and claimant only saw him once.”

(Tr. 30.) With respect to factors (3) and (4), the ALJ’s decision clearly

documents her consideration of the opinion’s lack of support by medical

evidence, and its inconsistency with the record as a whole. (Id.) There is

no apparent indication in the record of Dr. Miller’s medical specialization.

No additional factors appear to have been brought to the ALJ’s attention

for consideration. We find no error in the ALJ’s consideration of Dr.

Miller’s opinion or her assignment of little weight to it.

But once Dr. Miller’s opinion had been rejected and given little

weight, the only other medical opinion concerning Sparaney’s mental

limitations was the opinion of a non-examining state agency

psychological consultant, John D. Chiampi, Ph.D., who had found

Sparaney to be “moderately limited” in his ability to maintain

concentration, persistence, or pace. (Tr. 221–22.) The ALJ considered Dr.

Chiampi’s findings and assigned “some weight” to them. (Tr. 31.) In

particular, she noted that: “Subsequent to this evaluation, the listings

were changed and only some weight can be afforded to this opinion.

Weight was afforded to the concentration, persistence and pace

limitations as they are consistent with and well supported in the evidence

of record.” (Id.) The ALJ rejected the remainder of Dr. Chiampi’s findings

with respect to the paragraph B criteria of the listings. (Id.)

Thus, the medical evidence considered by the ALJ included an

opinion by Dr. Miller finding that Sparaney had marked limitations in

two of the paragraph B categories (understanding, remembering, and

applying information and interacting with others) and a mild limitation

in another (maintaining concentration, persistence, and pace), to which

the ALJ had assigned “little weight,” and an opinion by Dr. Chiampi

finding that Sparaney had moderate limitations in one paragraph B

category (maintaining concentration, persistence, and pace), to which the

ALJ had assigned “weight.” Despite these findings, and the absence of

any other medical opinions on Sparaney’s limitations in these areas of

mental functioning, the ALJ concluded that he had mild limitations in

three categories (understanding, remembering, and applying

information, interacting with others, and adapting or managing oneself)

and moderate limitations in the fourth (maintaining concentration,

persistence, and pace). In support of these findings, the ALJ relied on the

following evidence: (1) with respect to understanding, remembering, or

applying information, the ALJ found a mild limitation because Sparaney

reported being able to use a computer to get on Facebook, reading the

Sunday newspaper, and watching crime shows on television; (2) with

respect to interacting with others, the ALJ found a mild limitation

because Sparaney resided with his girlfriend and reported getting along

well with her and others, he attended monthly group sessions with a

psychiatrist, and he failed to identify any issues in his ability to interact

with anyone; (3) with respect to maintaining concentration, persistence,

or pace, the ALJ found a moderate limitation because the record reflected

a longitudinal history of medication management for anxiety and

attention deficit hyperactivity disorder, and presumably based on Dr.

Chiampi’s medical opinion to the extent she gave it weight; and (4) with

respect to adapting or managing oneself, the ALJ found a mild limitation

because “the documentary record does not support more than mild

limitations in this area.” (Tr. 23–24.)

“As a lay fact-finder, it is the ALJ’s responsibility to secure a

medical opinion explaining a claimant’s functional limitations. The ALJ

is not permitted to speculate based solely upon his or her interpretation

of the medical records, and must properly develop the record with regard

to facts essential to a disability determination.” Forberger v. Astrue, Civil

Action No. 10-376, 2011 WL 1085684, at *14 (W.D. Pa. Mar. 21, 2011);

see also Rivera-Torres v. Sec’y of Health & Hum. Servs., 837 F.2d 4, 6 (1st

Cir. 1988) (per curiam); Brown v. Barnhart, 285 F. Supp. 2d 919, 931–32

(S.D. Tex. 2003); Woodford v. Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y.

2000). Once the ALJ had discounted the opinions of both the consultative

examining psychologist, Dr. Miller, who had found marked limitations in

two categories,8 and the state agency psychological consultant, Dr.

Chiampi, who had recorded no findings at all in these same two

categories, there was no other opinion evidence in the record with respect

to these limitations caused by Sparaney’s mental health issues. Thus, the

ALJ necessarily used her own lay reinterpretation of the claimant’s

medical records to come to a conclusion in opposition to that of Dr. Miller,

which constitutes error and compels us to conclude that the ALJ’s step-

three determination with respect to the Paragraph B criteria is not

supported by substantial evidence. See Simpson v. Kijakazi, Civil No.

1:20-CV-00275, 2021 WL 3869942, at *9–*10 (M.D. Pa. Aug. 27, 2021);

see also McKean v. Colvin, 150 F. Supp. 3d 406, 418 (M.D. Pa. 2015).

Accordingly, in light of the foregoing, we are unable to conclude that

substantial evidence supports the ALJ’s step-three determination that

Sparaney did not have an impairment or combination of impairments

that met or medically equaled a listed impairment.

8 A finding that Sparaney had marked limitations in two of these

areas of mental functioning would have satisfied the paragraph B

criteria, resulting in a step-three finding that Sparaney was disabled. See

20 C.F.R. pt. 404, subpt. P, app.1, §§ 12.04(B), 12.06(B); see also id.

§ 12.00(F).

B. Recommendation of Future Back Surgery

The plaintiff contends that the ALJ failed to consider evidence from

a treating physician recommending that Sparaney undergo a future back

surgery, which the plaintiff argues is indicative of a more severe back

impairment than the ALJ credited.

The particular factual premise for this argument by the plaintiff

appears to be based on a misreading of the evidence. In a December 7,

2016, treatment note, one of the claimant’s treating physicians, Dean

Mozeleski, M.D., recommended “left L4 and L5 TF ESI” to treat

Sparaney’s continuing chronic low back and leg pain. (Tr. 636–37.) Based

on this, the plaintiff argues that this notation indicates a need for

additional, future back surgery. (See Doc. 18, at 12–13.) But, as the

defendant notes in her responsive brief (see Doc. 21, at 35–36 & n.8), this

notation—“TF ESI”—reflects a recommendation that Sparaney undergo

a significantly less invasive transforaminal epidural steroid injection, not

surgery. See generally Jane C. Ballantyne MD FRCA et al., Bonica’s

Management of Pain ch. 99 (5th ed. 2018) (discussing various techniques

for epidural steroid injections, including TF ESIs), Westlaw

LWWPAIN5TH CH99. Indeed, the plaintiff’s medical records indicate

that this injection was scheduled to take place one month later, on

January 9, 2017, a few days after Sparaney’s original hearing date. (See

Tr. 638; see also Tr. 176–77.) The outcome of that particular procedure,

however, is not reflected in the record.

This casts light on another issue, not raised by the plaintiff.9 Some

additional medical records were received into the record after the case

was remanded by the Appeals Council in July 2018. These included

psychiatric treatment records covering the period of February 5, 2017,

through October 16, 2018, and medical treatment records covering the

period of October 7, 2016, through December 12, 2016. (Tr. 641–57

(psychiatric treatment records); Tr. 658–68 (medical treatment records).)

But the record includes no medical treatment records dated after

December 2016, and as noted above, nothing to indicate the outcome of

the TF ESI procedure scheduled to take place on January 9, 2017. Upon

close examination, however, the psychiatric treatment records suggest

9 “[A] reviewing court may sua sponte address issues in social

security cases.” Mangan v. Colvin, Case No. 12 C 7203, 2014 WL

4267496, at *1 (N.D. Ill. Aug. 28, 2014); see also Farley v. Colvin, 231 F.

Supp. 3d 335, 339–41 (N.D. Cal. 2017); Peterson v. Comm’r of Soc. Sec.,

Civil Action No. 16-2912 (ES), 2018 WL 953345, at *1 n.1 (D.N.J. Feb. 20,

2018); Womack v. Astrue, No. CIV-07-167-W, 2008 WL 2486524, at *5

(W.D. Okla. June 19, 2008).

that Sparaney’s back condition may have worsened in the period

following his initial administrative hearing and the TF ESI procedure in

January 2017. On February 27, 2017, Sparaney reported to his

psychiatrist that he was in “agony.” (Tr. 644.) On August 14, 2017, he

reported that he was having back surgery “next month.” (Tr. 651.) On

October 9, 2017, he reported that he had back surgery “last week.” (Tr.

652.)

The ALJ’s second decision was issued on July 2, 2019. Because

Sparaney’s disability insurance eligibility had expired, the ALJ’s decision

covered the entire period from his alleged onset date of June 24, 2013,

through his date last insured, December 31, 2018. Despite evidence

suggesting possible deterioration of Sparaney’s back impairment in the

two-year period after the latest medical evidence received into the record,

the ALJ’s physical RFC determination relied solely on medical opinions

that predated the apparent worsening of his back condition. Under these

circumstances, the ALJ’s RFC determination is not supported by

substantial evidence. See Cincola v. Berryhill, Civil Action No. 3:16-0413,

2018 WL 1065109, at *1 (M.D. Pa. Feb. 27, 2018); Coniglio v. Colvin, Civil

Action No. 15-40, 2016 WL 4385870, at *12 (E.D. Pa. July 26, 2016); Kroh

v. Colvin, No. 3:13-CV-01533, 2014 WL 4384675, at *21 (M.D. Pa. Sept.

4, 2014).

Accordingly, in light of the foregoing, we are unable to conclude that

substantial evidence supports the ALJ’s physical RFC determination.

C. Further Administrative Proceedings on Remand

We suggest—but do not order—that the Commissioner reassign

this case to a different ALJ on remand. Based on our review of the two

written decisions by the ALJ and transcripts of the two administrative

hearings conducted before her, it is our impression that the goal of a fair

and effective resolution of the plaintiff’s application for disability

insurance benefits may be best served by such reassignment. See

generally United States v. Thouvenot, Wade & Moerschen, Inc., 596 F.3d

378, 386 (7th Cir. 2010) (“Courts can suggest but cannot require a change

of administrative law judges unless the administrative law judge has

demonstrated a degree of bias . . . that would disqualify him as a matter

of due process from further participation in the litigation . . . .”) (citing

Ventura v. Shalala, 55 F.3d 900, 902–05 (3d Cir. 1995)) (citations

omitted).

III. CONCLUSION

Based on the foregoing, we conclude that the Commissioner’s

finding that Sparaney was not disabled is not supported by substantial

evidence. Accordingly, the Commissioner’s decision denying his

application for disability insurance benefits will be vacated and the case

will be remanded for further proceedings consistent with this opinion.

Dated: March 30, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge