Hobart v. Kijakazi

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

PATRICIA ANN HOBART, ) CIVIL NO. 4:21-CV-02152

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

KILOLO KIJAKAZI, )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Patricia Ann Hobart, an adult who lives in the Middle District of

Pennsylvania, seeks judicial review of the final decision of the Commissioner of

Social Security (“Commissioner”) denying her application for disability insurance

benefits under Title II of the Social Security Act. Jurisdiction is conferred on this

Court pursuant to 42 U.S.C. §405(g).

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, the Court finds 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 August 19, 2016, Plaintiff protectively filed an application for disability

insurance benefits under Title II of the Social Security Act. (Admin. Tr. 20, 409;

Doc. 14, p. 3). In this application, Plaintiff alleged she became disabled on April 1,

2013, when she was 50 years old, due to the following conditions: back pain due to

LS radiculopathy, degeneration of the lower lumbar spine with moderate L5-S1left

lateral recess narrowing and neural foraminal encroachment with mild L4-L5 canal

stenosis, and SI joint irritability. (Admin. Tr. 409; Doc. 14, pp. 4-6). Plaintiff alleges

that the combination of these conditions affects her ability to sit, stand, walk, dress

herself, climb stairs, lift items, sleep, balance, maintain a pace, prepare meals, and

respond appropriately to stressful situations. (Doc. 14, p. 5; Admin. Tr. 206-13).

Plaintiff has at least a high school education. (Admin. Tr. 420). Before the onset of

her impairments, Plaintiff worked as an electrical assembler and inspector. (Admin.

Tr. 419).

On November 21, 2016, Plaintiff’s application was denied at the initial level

of administrative review. (Admin. Tr. 20). On December 8, 2016, Plaintiff requested

an administrative hearing. (Admin. Tr. 20).

On September 21, 2017, Plaintiff, assisted by her counsel, appeared and

testified during a hearing before Administrative Law Judge Bruce S. Fein (the

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“ALJ”). (Admin. Tr. 20, 35). On November 7, 2017, the ALJ issued a decision

denying Plaintiff’s application for benefits. (Admin. Tr. 35). On December 5, 2017,

Plaintiff requested that the Appeals Council of the Office of Disability Adjudication

and Review (“Appeals Council”) review the ALJ’s decision. (Admin. Tr. 5). Along

with her request, Plaintiff submitted a pain assessment as new evidence that was not

available to the ALJ when the ALJ’s decision was issued. (Admin. Tr. 6-12).

On January 26, 2018, the Appeals Council denied Plaintiff’s request for

review, stating that the pain assessment did not relate to the period for which the

ALJ decided Hobart’s claim. (Admin. Tr. 1-2).

On March 26, 2018, Plaintiff filed a complaint in the district court, alleging

that the ALJ’s decision was not supported by substantial evidence and improperly

applied the law. (Doc. 1 in case no. 3:18-CV-00666-RDM). In her briefs, Plaintiff

alleged that the ALJ erred by rejecting “the uncontroverted opinion of the

consultative examiner based upon lay reinterpretation of the evidence,” and failing

to appoint a medical expert, and relying on the grid rules despite finding non-

exertional limitations. (Doc. 11, pp. 6, 11, 16, in case no. 3:18-CV-00666-RDM). In

a report and recommendation dated March 28, 2019, then Chief Magistrate Judge

Schwab found that the ALJ improperly relied upon the grid rules in finding Hobart

not disabled at Step 5 because “the SSRs upon which ALJ Fein relies do not

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specifically speak to the impact of the combination of Hobart’s nonexertional

impairments on her occupational base.” (Report and Recommendation in case no.

3:18-CV-00666-RDM, pp. 11-15 (citing 20 C.F.R. § 404.1560(c)(2))). Then Chief

Magistrate Judge Schwab recommended remand for a new administrative hearing.

(Report and Recommendation in case no. 3:18-cv-00666-RDM, p. 16). On May 14,

2019, Judge Robert D. Mariani adopted the report and recommendation in full,

vacating the ALJ’s decision and remanding for a new hearing. (Order in case no.

3:18-CV-00666-RDM).

On December 3, 2019, Plaintiff, assisted by her counsel, appeared and

testified during a video hearing before the same ALJ. (Admin. Tr. 409). On January

13, 2020, the ALJ issued a decision denying Plaintiff’s application for benefits.

(Admin. Tr. 421). On February 6, 2020, Plaintiff requested that the Appeals Council

of the Office of Disability Adjudication and Review (“Appeals Council”) review the

ALJ’s decision. (Admin. Tr. 403).

On November 1, 2021, the Appeals Council denied Plaintiff’s request for

review, making the ALJ’s decision the final decision of the Commissioner subject

to review. (Admin. Tr. 399).

On December 23, 2021, Plaintiff filed her second complaint in the district

court. (Doc. 1). In the complaint, Plaintiff alleges that the ALJ’s decision denying

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

law. (Doc. 1, p. 1). As relief, Plaintiff requests that the Court reverse the

Commissioner’s decision or remand this case and award attorney’s fees. (Doc. 1, pp.

1-2).

On March 10, 2022, the Commissioner filed an answer. (Doc. 12). In the

answer, the Commissioner maintains that the decision denying Plaintiff’s

application was made in accordance with the law and is supported by substantial

evidence. (Doc. 12, pp. 1-3). Along with her answer, the Commissioner filed a

certified transcript of the administrative record. (Doc. 13).

Plaintiff’s Brief (Doc. 14), the Commissioner’s Brief (Doc. 15), and

Plaintiff’s Reply (Doc. 16 ) have been filed. This matter is now ready to decide.

III. STANDARDS OF REVIEW

Before looking at the merits of this case, it is helpful to restate the legal

principles governing Social Security Appeals.

A. SUBSTANTIAL EVIDENCE REVIEW – THE ROLE OF THIS COURT

A district court’s review of ALJ decisions in social security cases is limited to

the question of whether the findings of the final decision-maker are supported by

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substantial evidence in the record.1 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.”2 Substantial evidence is

less than a preponderance of the evidence but more than a mere scintilla.3 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.4 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.”5 “In determining if the Commissioner’s decision is supported

by substantial evidence the court must scrutinize the record as a whole.”6

The Supreme Court has underscored the limited scope of district court review

in this field, noting that:

The phrase “substantial evidence” is a “term of art” used throughout

administrative law to describe how courts are to review agency

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––, 135

S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence

1 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).

2 Pierce v. Underwood, 487 U.S. 552, 565 (1988).

3 Richardson v. Perales, 402 U.S. 389, 401 (1971).

4 Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).

5 Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).

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

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standard, a court looks to an existing administrative record and asks

whether it contains “sufficien[t] evidence” to support the agency's

factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And

whatever the meaning of “substantial” in other contexts, the threshold

for such evidentiary sufficiency is not high. Substantial evidence, this

Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales,

402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It

means—and means only—“such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Consolidated

Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S.

150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the

substantial-evidence standard to the deferential clearly-erroneous

standard).7

In practice, this is a twofold task. First, the court determines whether the final

decision is supported by substantial evidence. To accomplish this task, the court

must decide not only whether “more than a scintilla” of evidence supports the ALJ’s

findings, but also whether those findings were made based on a correct application

of the law.8 In doing so, however, the court is enjoined to refrain from trying to re-

7 Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).

8 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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weigh evidence and “must not substitute [its] own judgment for that of the fact

finder.”9

Second, the court must ascertain whether the ALJ’s decision meets the burden

of articulation the courts demand to enable judicial review. 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

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 505.10

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.”11 To satisfy this requirement, a

9 Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014).

10 Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

11 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a).

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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.12 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.13

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

five-step sequential evaluation process.14 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”).15

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

12 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).

13 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).

14 20 C.F.R. § 404.1520(a).

15 20 C.F.R. § 404.1520(a)(4).

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caused by his or her impairment(s).”16 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.17

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

demonstrating the existence of a medically determinable impairment that prevents

him or her from engaging in any of his or her past relevant work.18 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.19

IV. DISCUSSION

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

In his January 2020 decision, the ALJ found that Plaintiff met the insured

status requirement of Title II of the Social Security Act through March 31, 2016.

(Admin. Tr. 411). Then, Plaintiff’s application was evaluated at steps one through

five of the sequential evaluation process.

16 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).

17 20 C.F.R. § 404.1545(a)(2).

1842 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064.

19 20 C.F.R. § 404.1512(f); Mason, 994 F.2d at 1064.

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

activity at any point between April 1, 2013 (Plaintiff’s alleged onset date) and March

31, 2016 (Plaintiff's date last insured) (“the relevant period”). (Admin. Tr. 411-12).

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

following medically determinable severe impairment(s): lumbar degenerative disc

disease with right side radiculopathy, left sacroiliac joint dysfunction, panic

disorder, and major depressive disorder with a single episode. (Admin. Tr. 412). 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. 412).

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) subject to the following additional

limitations:

[Plaintiff] can occasionally climb ramps and stairs, and ladders, ropes,

and scaffolds. [Plaintiff] can occasionally balance, stoop, kneel, crouch,

and crawl. She should be afforded the opportunity to alternate between

sitting and standing at 15-minute intervals throughout the workday.

[Plaintiff] is able to work in a low-stress job defined as requiring only

occasional decision-making, occasional changes in the work setting,

and occasional judgment.

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(Admin. Tr. 414).

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

not engage in her past relevant work. (Admin. Tr. 419). 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. 420). 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: labeler (DOT# 920.687-126) with about 26,000 jobs in

the national economy; folder, laundry industry (DOT# 369.687-018), with about

7,500 jobs in the national economy; and garment folder (DOT# 789.687-066) with

about 7,000 jobs in the national economy. (Admin. Tr. 420).

B. WHETHER THE ALJ’S DECISION IS SUPPORTED BY SUBSTANTIAL

EVIDENCE

Plaintiff alleges that the ALJ’s RFC assessment is not supported by substantial

evidence because it exceeds the limitations of all medical opinions of record and

because Plaintiff was entitled to a hearing before a new ALJ upon the previous

remand due to unconstitutional appointment of the ALJ at the time of the previous

hearing. (Doc. 14, p. 7). Plaintiff argues that an ALJ cannot find a less restrictive

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RFC than opined in any medical opinions of record20 and that an ALJ may not use

“lay reinterpretation of raw medical data . . . to supplant a physician’s opinion.”21 In

response, the Commissioner contends that substantial evidence supports the ALJ’s

decision and that the ALJ was not required to limit Plaintiff to sedentary work. (Doc.

15, p. 1, 15-16).

The preliminary issue here is whether the Third Circuit allows an ALJ to form

a less restrictive RFC than that found in any medical opinion. It is the ALJ’s duty to

assess a claimant’s RFC and that the ALJ must consider all of the evidence, not only

the medical opinions of record.22 However, in Social Security cases, “[r]arely can a

decision be made regarding a claimant’s residual functional capacity without an

20 Doc. 14, pp. 11-13 (citing Doak v. Heckler, 790 F.2d 26, 29) (3d Cir. 1986);

Sanders v. Berryhill, Civ. A. No. 4:16-cv-02160-MWB at *11 (M.D. Pa. Dec. 11,

2017) (Saporito, M.J.); Prebish v. Berryhill, Civ. A. No. 3:18-cv-00710 at * 17

(M.D. Pa. Jun. 10, 2019) (Carlson, M.J.); Barnett v. Berryhill, Civ. A. No. 18-cv-

00637 at *16-17 (M.D. Pa. Dec. 10, 2018) (Carlson, M.J.); Middleton v. Berryhill,

No. 1:18-cv-00106 at *19 (M.D. Pa. Mar. 22, 2019) (Schwab, M.J.) (“[I]t is error to

find physical limitations in excess of any found by a medical professional, if a

medical opinion is contained in the record.”)).

21 Doc. 14, pp. 11-13 (citing Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)

(“[A]n ALJ may not make speculative inferences from medical reports” and “is not

free to set his own expertise against that of a physician who presents competent

evidence.”); Sanders, Civ. A. No. 4:16-cv-02160-MWB at *11 (M.D. Pa. Dec. 11,

2017) (Saporito, M.J.)).

22 20 C.F.R. §§ 404.1512(b), 404.1545(a)(3), 404.1546(c); Burnett, 220 F.3d at 121

(“In making a residual functional capacity determination, the ALJ must consider all

evidence before him.”).

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assessment from a physician regarding the functional abilities of the claimant.”23 In

Doak, the Third Circuit reversed the ALJ’s decision because the ALJ determined

that the plaintiff was able to perform work at a more strenuous level than found in

either medical opinion of record.24 In the Third Circuit, an RFC assessment is not

supported by substantial evidence where an ALJ finds a lesser degree of limitation—

meaning a greater degree of ability—than found by any medical professional without

other evidence that supports the ALJ’s RFC determination.25 This court has rejected

more than one ALJ decision as unsupported by substantial evidence where the ALJ

rejected all of the medical opinions of record.26 By contrast, ALJs are permitted to

find more restrictive RFCs than medical opinions indicate.27

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

24 Doak, 790 F.2d at 26-29.

25 Decker v. Berryhill, No. 1:17-CV-00945, 2018 WL 4189662, at *4-6, (M.D. Pa.

June 8, 2018), report and recommendation adopted, No. 1:17-CV-945, 2018 WL

4184304 (M.D. Pa. Aug. 31, 2018) (listing cases).

26 See id.; see McKean, 150 F. Supp. 3d at 418.

27 See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361-63 (3d Cir. 2011)

(declining to remand because the ALJ’s RFC determination was more restrictive

than suggested by a persuasive medical opinion); Titterington v. Barnhart, 174 F.

App'x 6, 11 (3d Cir. 2006) (affirming the ALJ’s decision because the ALJ created a

more limited RFC than indicated by the medical opinion); Metzgar v. Colvin, No.

3:16-CV-1929, 2017 WL 1483328 (M.D. Pa. Mar. 29, 2017) (emphasis in original),

report and recommendation adopted 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017)

(“[W]hen an ALJ is saying that a claimant can do more than the medical source

opinion states, courts exercise caution and suggest that only rarely can an ALJ

unilaterally impose an RFC on a claimant that is less restrictive than the residual

functional capacity found by the medical professional.”).

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The Commissioner contends that Foux v. Saul, 530 F. Supp. 3d 522 (M.D. Pa.

Mar. 30, 2021) protects the ALJ’s decision here, essentially by limiting the Third

Circuit’s disdain in Doak for RFCs which are less restrictive than opined by any

doctor. (Doc. 15, pp. 15-17). The Commissioner errs in her interpretation of Foux,

which instead holds that an ALJ properly formed an RFC based on a medical opinion

issued two years before the ALJ’s decision and that the ALJ did not err in failing to

obtain a new medical opinion in light of the claimant’s worsening neck pain.28

Reliance on an earlier medical opinion is not the same as reliance on no medical

opinion or a less restrictive RFC than opined in any medical opinion.

This record contains five medical opinions, including two which stated that

the record contained insufficient evidence upon which to render an opinion, two

about physical functioning, and one opinion about mental capacity. (Admin. Tr.

419). The ALJ rejected the opinions which found insufficient evidence because the

record was further developed after the rendering of those opinions. (Admin. Tr. 419).

Two doctors, Dr. Jenouri and Dr. Patel, opined as to Plaintiff’s physical

abilities. (Admin. Tr. 418). Dr. Jenouri found Plaintiff could: occasionally lift and

carry up to ten pounds and never lift or carry more than ten pounds; sit for up to two

hours at a time and six hours in one workday; stand or walk for up to one hour at a

28 Foux v. Saul, 530 F. Supp. 3d 522, 525–26 (M.D. Pa. 2021).

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time and one hour per workday; occasionally reach; frequently handle, finger, feel,

push, and pull; occasionally operate foot controls and climb ramps and stairs; and

never climb ladders or scaffolds, balance, stoop, kneel, crouch, or crawl. (Admin.

Tr. 318-23). With regard to Dr. Jenouri’s medical opinion, the ALJ stated:

The medical opinion of consultative examiner, Gilbert Jenouri, M.D. is

given little weight (5F). Dr. Jenouri’s medical opinion was based on

only one examination of the claimant one year after the date last

insured. Further, his opinion is not well-supported given the objective

findings outlined above, including Dr. Jenouri’s own physical

examination. Although at times, the record shows that the claimant had

antalgic gait, she was observed to ambulate independently and have

otherwise unremarkable gait (3F/16; 6F/11; 7F/4). She could reportedly

stand and/or walk for 30 minutes at a time (3F/15; 6F/10). Dr. Jenouri’s

finding that the claimant had decreased sensation to fine touch in the

bilateral lower extremities was inconsistent with the record which

shows that the claimant had intact sensation and normal reflexes (2F/4;

3F/15; 6F/10; 7F/4). Further, the records do not reflect significantly

reduced range of motion in the claimant’s shoulders, elbows, wrists,

hands, and thumbs as Dr. Jenouri noted (5F). Dr. Jenouri observed that

she was able to complete a form, zip, button, and tie (5F/2). Dr.

Jenouri’s manipulative limitations are thus unsupported by the record.

Further, the complete inability to perform balancing, stooping,

kneeling, crouching, crawling, and some climbing are inconsistent with

the record and generally normal muscle tone, bulk, and strength found

on examinations throughout the record (2F/4; 3F/15; 6F/10; 7F/4).

Further, few medical sources identified a problem with the claimant’s

balance or coordination (3F/16; 6F/11; 7F/4).

(Admin. Tr. 418). Therefore, the ALJ rejected Dr. Jenouri’s medical opinion.

Dr. Patel found Plaintiff could walk less than one block without rest or severe

pain, sit fifteen minutes without needing to stand, stand fifteen minutes without

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needing to sit, sit less then two hours total in one workday, and stand less than two

hours total in one workday. (Admin. Tr. 684-85). Dr. Patel found Plaintiff would

need 10-15 minute unscheduled breaks for each 10-15 minutes Plaintiff works and

that Plaintiff could rarely twist and never stoop, crouch, squat, or climb stairs or

ladders. (Admin. Tr. 686). Dr. Patel found that Plaintiff could rarely lift and carry

up to ten pounds and never lift more than ten pounds. (Admin. Tr. 686). With regard

to Dr. Patel’s medical opinion, the ALJ stated:

The opinion of the claimant’s physician, Pravinchandra Patel, M.D. is

given little weight (8F) . . . . Dr. Patel’s opinion is given little weight

because it is inconsistent with the evidence as a whole and with Dr.

Patel’s treatment and observations of the claimant. As noted above, the

medical record does not demonstrate that the claimant had pain or

limited range of motion in her hands, fingers, or arms. Further, there is

no support for the finding that the claimant could never look down and

rarely turn her head. The claimant reported being able to drive, which

requires the ability to turn the head in all directions (5E). Further, Dr.

Patel’s opinion that the claimant could only sit and stand/walk for 15

minutes at a time for two hours in an eight-hour workday is inconsistent

with the record and his own treatment records which show that the

claimant could stand/walk for 30 minutes and sit for an unlimited period

of time (3F/15; 6F/10). His lifting and postural restrictions are also

inconsistent with the record which shows that the claimant was ability

[sic] to rise from a seated position normally and did not require

assistance getting on and off an examination table (3F/16; 5F/2; 6F/11;

7F/4). Likewise, Dr. Patel’s opinion that the claimant would be off-task

for 25% of the day and was incapable of even “low-stress” work was

inconsistent with the evidence showing that she is able to perform

personal care for herself, prepare meals, clean her house, mow with a

tractor for 20 minutes at a time, grocery shop, drive a car, and visit with

family and friends (5E/3).

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(Admin. Tr. 418). Thus, the ALJ also rejected Dr. Patel’s medical opinion.

Therefore, the ALJ rejected both medical opinions about Plaintiff’s work-

related physical functioning. This court has previously rejected decisions by ALJs

who found all of the medical opinions of record to have little weight and could find

this ALJ decision unsupported by substantial evidence based upon the complete

rejection of all physical function medical opinions of record.29 However, I will also

examine whether the ALJ found a more or less restrictive RFC than opined in any

physical function medical opinion. Dr. Jenouri and Dr. Patel both opined that

Plaintiff could never climb ladders, stoop, crouch, or lift or carry more than ten

pounds. (Admin. Tr. 318-23, 686). Under the applicable regulations, “[s]edentary

work involves lifting no more than 10 pounds at a time and occasionally lifting or

carrying articles like docket files, ledgers, and small tools,” while “[l]ight work

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

objects weighing up to 10 pounds.”30 Here, with regard to physical functions, the

ALJ found Plaintiff retained the RFC to engage in light work as defined above with

the ability to “occasionally climb” ladders and occasionally stoop and crouch.

(Admin. Tr. 414). Although both doctors opined that Plaintiff could only lift and

29 See Decker, 2018 WL 4189662, at *4-6, report and recommendation adopted,

2018 WL 4184304; McKean, 150 F. Supp. 3d at 418.

30 20 C.F.R. § 404.1567(a)-(b).

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carry up to ten pounds and light work requires the ability to lift and carry up to

twenty pounds, the ALJ did not add any specific lifting or carrying limitations to

Plaintiff’s RFC or even explain why the ALJ believed Plaintiff could lift and carry

more than ten pounds. As the Third Circuit clearly rejected in Doak, the ALJ here

found Plaintiff able to perform more strenuous work than found in any relevant

medical opinion. (Admin. Tr. 414).

Because the ALJ assigned little weight to both medical opinions and found an

RFC with greater physical functioning than opined by any physician, the ALJ’s

decision is not supported by substantial evidence and is therefore vacated. Because

the Commissioner’s decision must be vacated and the case remanded,

C. APPOINTMENTS CLAUSE CHALLENGE

Plaintiff’s case was first heard by ALJ Fein in 2017. That decision was

appealed to this court and remanded. On remand ALJ Fein heard the case for a

second time. The Commissioner argues that “[t]he fact that Plaintiff previously

appeared for a hearing before the same ALJ in 2017 is of no moment here because

the ALJ’s prior 2017 decision was vacated by the Court in 2018.” (Doc. 15, p. 10-

11). The Commissioner argues that because ALJ Fein was properly appointed at the

time of the hearing in 2020, there is no error. I agree with the Plaintiff that the

Commissioner is wrong. See Denicola v. Comm. of Soc. Sec., Civ. A. No. 3:19-CV-

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01705, 2021 WL 735853 at *5 (M.D. Pa. Feb. 25, 2021); Evanitus v. Kijakazi, Civ.

A. No. 1:20-cv-01187-MCC (M.D. Pa. Nov. 23, 2021).

The Commissioner fails to discuss or distinguish Denicola or Evanitus.

There is no reason the Court should depart from these decisions in this

case. Hobart was entitled to a new ALJ on her remand hearing in 2020.

She was denied a hearing with a new ALJ. Remand is required with a hearing before

a different ALJ.31

Plaintiff’s remaining claims of error will not here be addressed. “A remand

may produce different results on these claims, making discussion of them moot.”32

[The next page contains the conclusion]

31 We don’t suggest that the integrity or competency of ALJ Fein is compromised,

only that the Constitution’s Appointments Clause requires a different ALJ on

remand.

32 Brown v. Saul, No. CV 3:18-1619, 2020 WL 6731732, at *7 (M.D. Pa. Oct. 23,

2020), report and recommendation adopted, 2020 WL 6729164, at *1 (M.D. Pa.

Nov. 16, 2020).

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V. CONCLUSION

Accordingly, I find that Plaintiff’s request for remand 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 before an ALJ other than ALJ Bruce S. Fein pursuant to

sentence four of 42 U.S.C. § 405(g).

(3) Final judgment will be issued in favor of Patricia Ann Hobart.

(4) An appropriate Order will issue.

Date: February 21, 2023 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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