Swinson v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JONATHAN EDWARD SWINSON, ) CIVIL ACTION NO. 4:21-CV-11

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

KILOLO KIJAKAZI, )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Jonathan Edward Swinson, an adult individual who resides in the

Middle District of Pennsylvania, seeks judicial review of the final decision of the

Acting Commissioner of Social Security (“Commissioner”) denying his applications

for disability insurance benefits and supplemental security income under Titles II

and XVI of the Social Security Act. Jurisdiction is conferred on this Court pursuant

to 42 U.S.C. §405(g) and 42 U.S.C. §1383(c)(3).

This matter is before me, upon consent of the parties pursuant to 28 U.S.C.

§ 636(c) and Rule 73 of the Federal Rules of Civil Procedure. After reviewing the

parties’ briefs, the Commissioner’s final decision, and the relevant portions of the

certified administrative transcript, I find the Commissioner's final decision is not

supported by substantial evidence. Accordingly the Commissioner’s final decision

will be VACATED.

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II. BACKGROUND & PROCEDURAL HISTORY

On January 23, 2019, Plaintiff protectively filed applications for disability

insurance benefits and supplemental security income under Titles II and XVI of the

Social Security Act. (Admin. Tr. 15). In these applications, Plaintiff alleged he

became disabled on September 25, 2018. During his second administrative hearing,

Plaintiff amended his onset date to January 23, 2019, when he was forty-four years

old. Plaintiff alleges he is disabled because of the following conditions: depression,

hypertension, joint and back pain, fibromyalgia, plantar fasciitis, and high blood

pressure. (Admin. Tr. 254). Plaintiff alleges that the combination of these conditions

affects his ability to lift, squat, bend, stand, reach, walk, kneel, talk, climb stairs,

complete tasks, and concentrate. (Admin. Tr. 289). Plaintiff alleges his impairments

also affect his memory. Id. Plaintiff has at least a high school education. (Admin.

Tr. 26). Before the onset of his impairments, Plaintiff worked as: a laborer, stores,

DOT #922.687-058; and automobile dealer, DOT #915.687-034. (Admin. Tr. 26).

On April 22, 2019, Plaintiff’s applications were denied at the initial level of

administrative review. (Admin. Tr. 15). On July 31, 2019, Plaintiff’s applications

were denied at the reconsideration level. Id. On October 12, 2019, Plaintiff requested

an administrative hearing. Id.

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On May 27, 2020, and August 24, 2020, Plaintiff testified during a telephone

hearings before Administrative Law Judge Scott M. Staller (the “ALJ”). Id. Plaintiff

was represented by counsel during the second administrative hearing. On September

9, 2020, the ALJ issued a decision denying Plaintiff’s applications for benefits.

(Admin. Tr. 27). On September 21, 2020, Plaintiff requested review of the ALJ’s

decision by the Appeals Council of the Office of Disability Adjudication and Review

(“Appeals Council”). (Admin. Tr. 212).

On December 1, 2020, the Appeals Council denied Plaintiff’s request for

review. (Admin. Tr. 1).

On January 4, 2021, Plaintiff initiated this action by filing a Complaint. (Doc.

1). In the Complaint, Plaintiff alleges that the ALJ’s decision denying the

applications is not supported by substantial evidence, and improperly applies the

relevant law and regulations. (Doc. 1, ¶18). As relief, Plaintiff requests that the Court

reverse the ALJ’s decision and award benefits. (Doc. 1).

On July 6, 2021, the Commissioner filed an Answer. (Doc. 17). In the Answer,

the Commissioner maintains that the decision holding that Plaintiff is not entitled to

disability benefits was made in accordance with the law and regulations and is

supported by substantial evidence. (Doc. 17, ¶ 10). Along with her Answer, the

Commissioner filed a certified transcript of the administrative record. (Doc. 18).

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Plaintiff’s Brief (Doc. 23), and the Commissioner’s Brief (Doc. 24) have been

filed. Plaintiff did not file a reply. This matter is ready to decide.

III. STANDARDS OF REVIEW

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); 42 U.S.C. § 1383(c)(3); 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 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

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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 Plaintiff is disabled, but whether the Commissioner’s finding that Plaintiff

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 matters is plenary); Ficca, 901 F. Supp. 2d at 536 (“[T]he court

has plenary review of all legal issues . . . .”).

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B. STANDARDS GOVERNING THE ALJ’S APPLICATION OF THE FIVE-STEP

SEQUENTIAL EVALUATION PROCESS

To receive benefits under 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); 20 C.F.R. § 416.905(a).1 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); 20 C.F.R. §

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).

In making this determination at the administrative level, the ALJ follows a

five-step sequential evaluation process. 20 C.F.R. § 404.1520(a); 20 C.F.R. §

1 Throughout this Opinion, I cite to the version of the administrative rulings and

regulations that were in effect on the date the Commissioner’s final decision was

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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); 20 C.F.R. § 416.920(a)(4).

Between steps three and four, the ALJ must also assess a claimant’s 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); 20 C.F.R.

§ 404.1545(a)(1); 20 C.F.R. § 416.920(e); 20 C.F.R. § 416.945(a)(1). In making this

assessment, the ALJ considers all 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); 20 C.F.R. § 416.945(a)(2).

At steps one through four, the claimant bears the initial burden of

demonstrating the existence of a medically determinable impairment that prevents

issued. In this case, the ALJ’s decision, which serves as the final decision of the

Commissioner, was issued on September 9, 2020.

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him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5);

42 U.S.C. § 1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference);

20 C.F.R. § 404.1512; 20 C.F.R. § 416.912; Mason, 994 F.2d at 1064. Once this

burden has been met by the claimant, it shifts to the Commissioner at step five 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

experience and RFC. 20 C.F.R. § 404.1512(b)(3); 20 C.F.R. § 416.912(b)(3);

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, 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).

Page 8 of 23

IV. DISCUSSION

Plaintiff raises the following issues in his statement of errors:

(1) Whether the Administrative Law Judge erred and abused his

discretion by failing to consider the limitations from Plaintiff’s

rheumatoid arthritis, psoriatic arthritis, fibromyalgia and morbid

obesity, in setting forth Plaintiff’s residual functional capacity.

(2) Whether the Administrative Law Judge erred and abused his

discretion in failing to consider the limitations from Plaintiff’s

diagnosed and treated migraine headaches, vertigo, chronic

venous insufficiency, post-concussive syndrome, short-term

memory loss, depression and anxiety, as the Administrative Law

Judge improperly determined these disorders to be non-severe.

(3) Whether the Administrative Law Judge erred and abused his

discretion in failing to afford proper weight to opinions from

treating sources, as compared to the opinions from the State

Agency Consultants.

(Doc. 23, pp. 1-2).

A. THE ALJ’S DECISION DENYING PLAINTIFF’S APPLICATIONS

In his September 2020 decision, the ALJ found that Plaintiff meets the insured

status requirement of Title II of the Social Security Act through March 31, 2024.

(Admin. Tr. 17). Then, Plaintiff’s applications were evaluated at steps one through

five of the sequential evaluation process.

At step one, the ALJ found that Plaintiff did not engage in substantial gainful

activity at any point between January 23, 2019, (Plaintiff’s amended alleged onset

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date), and September 9, 2020, (the date the ALJ decision was issued) (“the relevant

period”). (Admin. Tr. 17).

At step two, the ALJ found that, during the relevant period, Plaintiff had the

following medically determinable severe impairments: rheumatoid arthritis,

psoriatic arthritis, fibromyalgia, and morbid obesity. (Admin. Tr. 17-18). The ALJ

also identified the following medically determinable non-severe impairments:

history of plantar fasciitis, migraine headaches, vertigo, asthma, depressive disorder,

cognitive impairment, and post-concussive syndrome. (Admin. Tr. 17-19).

At step three, the ALJ found that, during the relevant period, Plaintiff did not

have an impairment or combination of impairments that met or medically equaled

the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(Admin. Tr. 20).

Between steps three and four, the ALJ assessed Plaintiff’s RFC. The ALJ

found that, during the relevant period, Plaintiff retained the RFC to engage in light

work as defined in 20 C.F.R. § 404.1567(b) and 20 C.F.R. § 416.967(b) except that:

the claimant can stand and/or walk for four hours in an eight-hour

workday. The claimant can frequently reach, handle, finger, and feel

with his bilateral upper extremities. He can occasionally climb, balance,

stoop, kneel, crouch or crawl. The claimant can operate foot controls

with his bilateral lower extremities. The claimant can have frequent

exposure to dust, fumes, gases, odors, poor ventilation and other

pulmonary irritants.

Page 10 of 23

(Admin. Tr. 21).

At step four, the ALJ found that, during the relevant period, Plaintiff could

not engage in his past relevant work. (Admin. Tr. 26).

At step five, the ALJ found that, considering Plaintiff’s age, education and

work experience, Plaintiff could engage in other work that existed in the national

economy. (Admin. Tr. 26-27). To support his conclusion, the ALJ relied on

testimony given by a vocational expert during Plaintiff’s administrative hearing and

cited the following three (3) representative occupations: information clerk, DOT

#237.367-018; assembler, electrical accessories, DOT #729.687-010; and mail clerk,

DOT #209.687-026. (Admin. Tr. 27).

B. WHETHER THE ALJ FAILED TO CONSIDER PLAINTIFF’S TESTIMONY

WHEN HE MADE THE RFC ASSESSMENT

During his administrative hearing, Plaintiff testified that his diagnosed

conditions of osteoarthritis, inflammatory arthritis, and psoriatic arthritis affect all

of his joints and that his body is “pretty much always on fire.” (Admin. Tr. 46). He

reported that he could stand for five minutes at a time, walk up to 50 feet before he

needed a break, and walk for up to 12 minutes at a time. Id.

Due to the swelling in his feet, Plaintiff has difficulty wearing shoes, and

usually wears sandals even in the winter. Id. He typically elevates his legs “all day,”

and has been prescribed medication to help reduce the swelling. (Admin. Tr. 47).

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Plaintiff did try to use compression bandages to manage his symptoms, but this

method was not effective. (Admin. Tr. 52). He testified that any physical activity

makes the swelling worse. As an example, he said that if he helps put away groceries

for ten minutes, his hands and feet begin to swell. (Admin. Tr. 50).

Plaintiff also reported numbness and tingling in his arms and legs. He reported

that this symptom makes it difficult for him to grip objects, move things, and lift

things. (Admin. Tr. 55).

Plaintiff testified that, in addition to the medication to address his swollen legs

and feet, he is also prescribed allergy and blood pressure medication. (Admin. Tr.

48). He reported that his medication regimen causes headaches and makes it difficult

for him to sleep. Id. Plaintiff testified that he sleeps four hours each night, but then

falls asleep during the day. (Admin. Tr. 48).

In terms of his daily activities, Plaintiff is able to dress himself, and can bathe

himself with the use of a shower chair. (Admin. Tr. 48). He does not cook, wash

dishes, do laundry, take out the trash, mow the lawn or do any gardening. (Admin.

Tr. 49). He testified that he cannot vacuum. Id. Plaintiff reported that his teenaged

children do many of the chores around the house. Id.

The ALJ provided the following summary of Plaintiff’s statements about his

symptoms:

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The claimant asserts that his conditions limit his ability to work. He

asserts that his conditions cause swelling in his shins, ankles, and feet

(Exhibit B5E). He further asserts that his conditions impact his ability

to sleep, specifically noting irregular sleep patterns of increased and

decreased sleep (Exhibit B5E at 3). The claimant indicates his

conditions impact his ability to lift, squat, bend, stand, reach, walk for

more than ten minutes, kneel, talk, and climb stairs (Exhibit B5E). He

indicates that he takes medications to treat his conditions, which causes

side effects of pain, weight gain, swelling, dizziness, nausea and fatigue

(Exhibit B5E).

(Admin. Tr. 22). This summary references only a function report questionnaire that

Plaintiff completed in March of 2019. (Admin. Tr. 284-291). The ALJ does not

mention or summarize Plaintiff’s hearing testimony at any point in the decision.

In his decision, the ALJ found that, Plaintiff’s conditions were not as

debilitating as Plaintiff alleged. In doing so, the ALJ summarized Plaintiff’s

treatment records, and explained:

While the claimant asserts that his conditions prevents [sic] him from

engaging in substantial gainful activity, the undersigned finds that the

claimant’s conditions are not as debilitating as alleged. While the record

shows that the claimant experienced edema in his lower extremities,

treatment records generally indicate that the claimant maintained a

normal gait and stance (Exhibit B5F; B11F). Despite the claimant’s

subjective reports of symptoms of pain, numbness, and tingling in his

extremities and treatment records that noted edema, examinations

generally indicated he maintained five out of five strength in his upper

and lower extremities (Exhibit B5F; B11F). Similarly, the claimant’s

activities of daily living establish that the claimant’s conditions are not

as debilitating as alleged. The claimant is able to care for his personal

needs and grooming, including his ability to dress, bathe, care for his

hair, shave, feed himself, and use the bathroom (Exhibit B5E). The

claimant is also able to care for his children, including dropping them

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off and picking them up from the bus stop (Exhibit B5E). The claimant

can prepare simple meals on a daily basis (Exhibit B5E). He can also

assist with housework, including doing the laundry and vacuuming

(Exhibit B5E). The claimant is able to go outside alone and can operate

a motor vehicle (Exhibit B5E). He is also able to shop in stores (Exhibit

B5E).

(Admin. Tr. 23-24).

The Commissioner’s regulations define “symptoms” as the claimant’s own

description of his or her impairment. 20 C.F.R. § 404.1502(i); 20 C.F.R.

§ 416.902(i). The ALJ is not only permitted, but also required, to evaluate a

claimant’s statements about all symptoms alleged and must decide whether and to

what extent a claimant’s description of his or her impairments are credibly

established. In many cases, this determination has a significant impact upon the

outcome of a claimant’s application, because the ALJ need only account for those

symptoms – and the resulting limitations – that are credibly established when

formulating his or her RFC assessment. Rutherford v. Barnhart, 399 F.3d 546, 554

(3d Cir. 2005). To facilitate this difficult analysis, the Commissioner has devised a

two-step process that must be undertaken by the ALJ to evaluate a claimant’s

statements about his or her symptoms.

First, the ALJ must consider whether there is an underlying medically

determinable impairment that can be shown by medically acceptable clinical and

laboratory diagnostic techniques that could reasonably be expected to produce the

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symptom alleged. 20 C.F.R. § 404.1529(b); 20 C.F.R. § 416.929(b). If there is no

medically determinable impairment that could reasonably produce the symptom

alleged, the symptom cannot be found to affect the claimant’s ability to do basic

work activities. 20 C.F.R. § 404.1529(b); 20 C.F.R. § 416.929(b); SSR 16-3p, 2016

WL 1119029.

Second, the ALJ must evaluate the intensity, persistence, and limiting effects

of the symptoms which can be reasonably attributed to a medically determinable

impairment. 20 C.F.R. § 404.1529(c)(1); 20 C.F.R. § 416.929(c)(1). Symptoms will

be determined to reduce a claimant’s functional capacity only to the extent that the

alleged limitations and restrictions can reasonably be accepted as consistent with

objective medical evidence and other evidence of record. 20 C.F.R.

§ 404.1529(c)(4); 20 C.F.R. § 416.929(c)(4). However, an ALJ will not reject

statements about the intensity, persistence, or limiting effects of a symptom solely

because it is not substantiated by objective evidence. 20 C.F.R. § 404.1529(c)(3); 20

C.F.R. § 416.929(c)(3). Instead, the ALJ will evaluate the extent to which any

unsubstantiated symptoms can be credited based on the following factors: the

claimant’s daily activities; the location, duration, frequency, and intensity of the

claimant’s pain or other symptoms; any factor that precipitates or aggravates the

claimant’s pain or other symptoms; the type, dosage, effectiveness, and side effects

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of any medication the claimant takes or has taken to alleviate his or her pain or other

symptoms; any treatment, other than medication, the claimant receives or has

received for relief of his or her pain or other symptoms; any measures the claimant

uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your

back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any

other factors concerning functional limitations and restrictions due to pain or other

symptoms. 20 C.F.R. § 404.1529(c)(3); 20 C.F.R. § 416.929(c)(3).

An ALJ’s findings based on the credibility of a claimant are to be accorded

great weight and deference, since an ALJ is charged with the duty of observing a

witness’s demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL

288246, at *9 (E.D. Pa. Mar. 7, 2000) (quoting Walters v. Comm’r of Soc. Sec., 127

F.3d 525, 531 (6th Cir. 1997)). An ALJ is not free to discount a claimant’s statements

about his or her symptoms or limitations for no reason or for the wrong reason.

Rutherford, 399 F.3d at 554.

Plaintiff argues that the ALJ ignored Plaintiff’s hearing testimony.

Specifically, Plaintiff contends:

The RFC set forth by the ALJ limited Claimant to light work, with

additional limitations that did not accurately set forth all of the

limitations from Claimant’s severe impairments. (Admin Tr. 21-25).

Despite evidence of regarding some issues with pain, concentration and

focus due to both mental and physical-health related issues, the RFC

from the ALJ contains no non-exertional limitations, and despite

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multiple severe physical impairments, is lacking in sufficient exertional

limitations, as will be discussed and highlighted below. (Admin Tr. 21-

25). The ALJ failed to consider the record of this claim as a whole, as

he focused almost solely on treatment notes which support his

determination regarding Claimant’s RFC.

In the instant matter, as it relates to Claimant’s severe impairments the

medical records establish the following limitations and impairments:

(1) bilateral foot pain and leg swelling, (2) diagnostic evidence of

peripheral venous insufficiency, (3) moderate to severe pain and

swelling, including hands, (4) increased pain with activity, (5)

prolonged morning stiffness, (6) radiating back pain, (7) burning

numbness with rashes, and (8) fatigue, shortness of breath and trouble

walking. (Admin Tr. 355, 359, 378, 387, 433, 503, 508, 564, 581, 598,

660, 667, 674, 680, 728, 762, 811-812, and 833).

Claimant’s testimony confirmed the following limitations and related

impairments: (1) pain, swelling and neuropathy, all worse with activity,

(2) limited sitting/standing/walking, (3) edema which is only resolved

by elevating his legs as recommended by his doctors, (4) trouble

sleeping due to pain and racing thoughts, (5) the worst pain and

swelling in his hands and lower extremities, (6) he can only sit 10 to 15

minutes before his feet and legs swell up and get painful, (7) daily

numbness and tingling in his arms and legs from the neuropathy, and

(8) he gets up and moves around after sitting for 10 to 15 minutes.

(Admin Tr. 43-56). These disorders and related issues, which are

verified by both Claimant and the medical record, should not have been

ignored by the ALJ in terms of Claimant’s limitations in his RFC, as

there is no evidence in the record to contradict the fact that Claimant

actually experiences what he alleges on a daily basis as a result of

multiple severe impairments.

The ALJ failed to adequately consider the impact of Claimant’s

documented issues with pain, from multiple chronic and incurable

severe physical impairments, as follows: (1) chronic bilateral foot pain,

(2) chronic reoccurring migraine headaches, with vertigo and dizziness,

(3) pain flareups with leg swelling, (4) swelling and pain in the legs

while sitting, (5) worsening chronic venous insufficiency, (6) missing

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2 or 3 days of work, every 6 weeks due to leg pain, (7) spending a lot

of time in a recliner due to pain, (8) testing confirming inflammatory

poly-arthritis, (9) moderate to severe joint pain and swelling, down

from the back and into the legs and knees, (10) findings of positive SLR

bilaterally and reduced strength, (11) a brain MRI confirming a micro-

hemorrhage in the right frontal region, (12) morning stiffness, (13)

numbness and tingling in the arms and legs, (14) paresthesias in his

fingers and toes, and (15) worsening leg pain and swelling despite

wrapping his legs and using compression stockings. (Admin Tr. 354-

361, 374, 432, 489, 576-579, 589, 614, 642-643, 705 and 745). The ALJ

also did not properly consider Claimant’s multiple issues involving his

legs, including pain, swelling, numbness and tingling, in combination

with the issues regarding his toes, and the impact upon his ability to

walk/stand/sit, particularly as it relates to his need to elevate his legs

(as recommended by his physicians).

The ALJ further erred and abused his discretion in setting forth

Claimant’s RFC, as he failed to include a sit/stand option, which is

necessitated by Claimant’s pain-related disorders, and as he failed to

include periods of Claimant needing to walk away from his work stating

multiple times per hour during an 8 hour workday, which, per the VE,

would render Claimant incapable of working. (Admin Tr. 61-64). The

ALJ should have, at the very least, included additional unscheduled

break time Claimant would need and require on a daily basis to deal

with multiple complaints and area of pain, which worsen with activity,

and would also render Claimant unemployable. (Admin Tr. 62-63). In

addition, if the Claimant were to elevate his legs at waist level for even

one to two hours per day (which is reasonable given his severe leg

edema), he would be unemployable per the VE. (Admin Tr. 63-64).

Finally, the ALJ erred by failing to consider the issues and limitations

Claimant had in his last job before he stopped working due to his

medical conditions, during which period of time he was missing work

2-3 times every 6 weeks, and the overall impact upon his employability

over time. (Admin Tr. 41-42, 50-52, 365-366 and 387).

Based upon the above, the RFC from the ALJ is deficient, as it does not

include, nor does it account for, limitations supported by the record in

this matter.

Page 18 of 23

(Doc. 23, pp. 12-18) (internal footnote omitted) (emphasis added).

In response, the Commissioner argues that the ALJ’s decision, read as a

whole, demonstrates that the ALJ thoroughly evaluated the evidence of record and

included all of Plaintiff’s credibly established limitations in the RFC. Specifically,

the Commissioner contends:

The ALJ’s decision, read as a whole, demonstrates that the ALJ

thoroughly evaluated the evidence of record and included all of

Plaintiff’s credibly-established functional limitations in the RFC. Thus,

Plaintiff’s argument that the ALJ “failed to consider the limtiations [sic]

from [his] rheumatoid arthritis, psoriatic arthritis, fibromyalgia, and

morbid obesity” (Pl.’s Br. at 12-18) is without merit.

The ALJ discussed that:

• At the consultative examination, Plaintiff exhibited normal

gait and stance, could walk on his heels and toes without

difficulty, and did not require the use of an assistive device to

ambulate, could perform a squat to 50% of full, had full (5/5)

strength in his upper and lower extremities and grip and had

intact hand and finger dexterity (Tr. 22, 414-15);

• In September 2019, Plaintiff had a normal gait and normal

proximal and distal strength (Tr. 22, 616);

• The next month, he again had a normal gait and normal

strength in his bilateral upper and lower extremities (Tr. 22,

590);

• Plaintiff was able to still get around and perform his activities

of daily living (Tr. 22, 598);

• In November 2019, Plaintiff had a stiff gait and tender lumbar

spine with only a mild limitation of motion, a negative

straight leg raise and maintained normal proximal and distal

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strength, and he was advised to begin physical therapy, which

he began in January 2020 (Tr. 23, 571, 583);

• In February 2020, Plaintiff did not have swelling in his

bilateral lower extremities (Tr. 23, 657);

• In July 2020, Plaintiff ambulated with an antalgic gait and had

a poor heel and toe walk with edema in his wrists, hands, legs,

ankles, and feet, but continued to exhibit full strength (Tr. 23,

706);

• Plaintiff was also counseled on the need for a healthy diet in

light of his obesity (Tr. 23, 729, 827); and

• The consultative examiner opined that Plaintiff could

occasionally lift up to 100 pounds; stand for four hours and

walk for two hours in an eight-hour workday; frequently

balance; occasionally operate foot controls bilaterally and

climb stairs, ramps, ladders, or scaffolds; frequently operate

a motor vehicle; and occasionally be exposed to unprotected

heights (Tr. 24, 419-24).

While Plaintiff asserted that his conditions prevented him from

engaging in substantial gainful activity, the ALJ’s finding that his

conditions are not as debilitating as alleged was supported by more than

a mere scintilla of evidence. Specifically, despite Plaintiff’s subjective

reports of symptoms of pain, numbness, and tingling in his extremities

and treatment records that noted edema, examinations generally

indicated he maintained five out of five strength in his upper and lower

extremities and generally indicate that the claimant maintained a

normal gait and stance. See Dixon v. Comm’r of Soc. Sec., 183 F. App’x

248 (3d Cir. 2006) (approving of the ALJ’s analysis finding that the

medical exhibit demonstrated normal physical findings and noting there

existed no atrophy suggesting an inability to perform sedentary work).

Additionally, the ALJ found that Plaintiff’s activities of daily living

establish that his conditions are not as debilitating as alleged. More than

a mere scintilla of evidence supports this conclusion. Because Plaintiff

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has failed to meet his burden to show that further limitations were

warranted, the Court should affirm.

With respect to Plaintiff’s claim that the ALJ erred in not fully

considering his need to take unscheduled breaks, his ability to remain

on task, or his expected absenteeism (Pl.’s Br. at 20, 24), Plaintiff has

provided no citation to evidence in the record apart from the

unpersuasive checkbox opinions from his providers (as fully discussed

infra) to support this argument. Woodson, 661 F. App’x at 765-66

(finding that, to explain how a perceived error was harmful, a plaintiff

must “affirmatively point to specific evidence that demonstrates he

should succeed.”). Accordingly, this argument should be rejected.

Significantly, the ALJ recognized that Plaintiff had some limitations,

but reasonably found that they were not work-preclusive. Additionally,

the RFC assessment credited Plaintiff’s subjective complaints to the

extent that he could not perform his past relevant work (Tr. 21). But,

Plaintiff has not pointed to evidence of limitations as would compel a

finding that greater limitations were warranted. See SSR 96-8p, 1996

WL 374184 at *1 (“The RFC assessment considers only functional

limitations and restrictions that result from an individual’s medically

determinable impairment or combination of impairments, including the

impact of any related symptoms.”) (emphasis added); Elias-Zacarias,

502 U.S. at 481 n.1; Woodson, 661 F. App’x at 765-66. See also Trostle

v. Astrue, 2009 WL 1648908, at *4 (W.D. Pa. June 10, 2009) (affirming

the ALJ’s decision where the claimant did not identify any specific

limitation supported by the evidence that the ALJ did not include in the

RFC assessment, which was supported by substantial evidence); Sharp

v. Astrue, No. 02-0910, 2011 WL 4351616 at *5 (W.D. Pa. Sept. 16,

2011) (“While Plaintiff may not have enjoyed complete relief of her

symptoms, Plaintiff fails to illustrate how her remaining limitations

were not adequately accommodated in the ALJ’s hypothetical to the

vocational expert.”).

More than a mere scintilla of evidence supports the RFC assessment.

Biestek, 139 S.Ct. at 1154. Accordingly, the Court should affirm.

(Doc. 24, pp. 12-16).

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Plaintiff frames this argument as a challenge to the ALJ’s RFC assessment,

however upon close scrutiny the argument itself challenges the ALJ’s evaluation of

Plaintiff’s hearing testimony. The ALJ did not summarize or otherwise discuss

Plaintiff’s testimony in a meaningful way in the decision. Instead, the ALJ’s

discussion of Plaintiff’s statements is limited to a check-box adult function report

questionnaire submitted in March 2019—more than one year before the hearing

occurred and before Plaintiff was diagnosed with the medically determinable

impairments of arthritis and fibromyalgia at issue in this case. (Admin. Tr. 291)

(explaining that Plaintiff is waiting for an appointment with a Rheumatologist and

that his family doctor “can’t figure out what is wrong”).

While some of the statements in the check-box adult function report

questionnaire are duplicative of Plaintiff’s hearing testimony, others are not. For

example, in his hearing testimony Plaintiff testified that he cannot stand for more

than five minutes, while in the questionnaire he reports he cannot stand more than

two hours. Plaintiff’s testimony also describes the nature and extent of his pain in

more detail, as well as the nature and extent of his swelling and methods he uses to

manage that symptom. Because no explanation was provided, the Court cannot

determine if the ALJ’s rationale for discounting Plaintiff’s statements is proper and

is supported by substantial evidence. Although it seems likely that the ALJ did

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consider the hearing testimony, because he did not explain why and to what extent

it was discounted I am compelled to remand in this case.

C. PLAINTIFF’S REMAINING ARGUMENTS

In his brief, Plaintiff also argues that the ALJ failed to address his hearing

testimony about the limitations caused by his medically determinable non-severe

impairments, and did not properly weigh the medical opinions of two sources—

CRNP Chang and Dr. Albano-Aluquin. To the extent any further error exists, it can

be addressed on remand.

V. CONCLUSION

Accordingly, I find that that Plaintiff’s request for relief will be GRANTED

as follows:

(1) The final decision of the Commissioner will be VACATED.

(2) This case will be REMANDED to the Commissioner for further

proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

(3) Final judgment will be issued in favor of Jonathan Edward Swinson.

(4) An appropriate order will be issued.

Date: September 9, 2022 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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