Loverso v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

NICOLE LOVERSO, ) CIVIL ACTION NO. 4:21-CV-2110

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

KILOLO KIJAKAZI, )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Nicole Loverso, an adult who lives in the Middle District of

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

of Social Security (“Commissioner”) denying her applications 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). The parties have consented to have a

Magistrate Judge conduct all proceedings in this case. (Doc. 8).

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 and this case is REMANDED

for further proceedings.

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II. BACKGROUND & PROCEDURAL HISTORY

On March 8, 2016, Plaintiff protectively filed an application for disability

insurance benefits under Title II of the Social Security Act. (Admin. Tr. 12; Doc.

10-2, p. 13). In this application, Plaintiff alleged she became disabled on August 24,

2015, when she was 42 years old, due to the following conditions: spinal fusion,

spondylosis, degenerative disc disease, and anxiety. (Admin. Tr. 162; Doc. 10-6, p.

5). In her 2016 application, Plaintiff alleged that the combination of these conditions

affects her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs,

complete tasks, concentrate, understand, follow instructions, use her hands, and get

along with others. (Admin. Tr. 191; Doc. 10-6, p. 34). Plaintiff earned her GED.

(Admin. Tr. 163; Doc. 10-6, p. 6).

On July 7, 2016, Plaintiff’s 2016 application was denied at the initial level of

administrative review. (Admin. Tr. 12; Doc. 10-2, p. 13). On July 29, 2016, Plaintiff

requested an administrative hearing. Id.

On December 8, 2017, Plaintiff, represented by counsel, appeared and

testified during a hearing before Administrative Law Judge Charles A. Dominick

(“ALJ Dominick”). (Admin. Tr. 12, 23; Doc. 10-2, pp. 13, 24). On December 26,

2017, ALJ Dominick issued a decision denying Plaintiff’s 2016 application for

benefits. (Admin. Tr. 23; Doc. 10-2, p. 24). On December 29, 2017, Plaintiff

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

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Review (“Appeals Council”) review ALJ Dominick’s decision. (Admin. Tr. 5; Doc.

10-2, p. 6). On October 16, 2018, the Appeals Council denied Plaintiff’s request for

review. (Admin. Tr. 1; Doc. 10-2, p. 2).

On December 13, 2018, Plaintiff appealed the denial of her 2016 application

to the district court. (Admin. Tr. 622-623; Doc. 10-9, pp. 2-3). In the complaint,

Plaintiff alleged, among other things, that ALJ Dominick had not been

constitutionally appointed. Id. On April 29, 2020, the case was remanded to the

Commissioner to conduct a new administrative hearing before a different,

constitutionally appointed, ALJ. (Admin. Tr. 671-672; Doc. 10-9, pp. 51-52).

Before the 2016 application was remanded, Plaintiff filed a new application

for disability insurance benefits under Title II on January 3, 2019 (“2019

application”). (Admin. Tr. 544; Doc. 10-8, p. 5). In the 2019 application, Plaintiff

alleges that she was unable to work because of the following conditions: thoracic,

lower back, sciatic pain; degeneration of lumbosacral intervertebral disc; neck,

shoulder, knee, feet, ankle pain; lumbar radiculopathy; hernia; myomatous uterus;

diverticulosis; pelvic congestion syndrome; IBSD; and high blood pressure. (Admin.

Tr. 897; Doc. 10-12, p. 10). On March 25, 2019, the 2019 application was denied at

the initial level of review. (Admin. Tr. 657; Doc. 10-9, p. 37). On December 24,

2019, Administrative Law Judge Jarrod Tranguch (the “ALJ”) issued a decision

denying the 2019 application. Id. Plaintiff requested Appeals Council review of the

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decision denying the 2019 application. On September 9, 2020, the Appeals Council

denied Plaintiff’s request for review. (Admin. Tr. 682; Doc. 10-9, p. 62).

Upon the District Court’s remand of the 2016 application, the Appeals

Council remanded the 2016 application and re-opened and remanded the 2019

application to the ALJ. (Admin. Tr. 544; Doc. 10-8, p. 5). Those two applications

were assigned to ALJ Tranguch for a new hearing.

On June 15, 2021, Plaintiff appeared for a brief telephone hearing. Only

procedural matters were discussed, and no substantive testimony was presented.

(Admin. Tr. 569-585; Doc. 10-8, pp. 31-47). On September 9, 2021, Plaintiff, having

waived representation, appeared for a second telephone hearing before the ALJ.

(Admin. Tr. 586 – 620; Doc. 10-8, pp. 47- 82).

On October 14, 2021, the ALJ issued the most recent ALJ decision denying

Plaintiff’s 2016 and 2019 applications for benefits. (Admin. Tr. 541-567; Doc. 10-

8, pp. 2-28).

On December 16, 2021, Plaintiff filed this complaint in the district court

seeking remand for what would be a fourth hearing. (Doc. 1).1

1 The Complaint only seeks “…a judgement for such relief as may be proper.” The

complaint does not state why the ALJ Decision was improper, only that it was

“adverse.” (Doc. 1). However, in Plaintiff’s Brief “Plaintiff respectfully submits that

the Court should enter judgment under sentence four of 42 U.S.C. §405(g), reversing

the Agency’s final decision with a remand for a rehearing, i.e., for further

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On March 7, 2022, the Commissioner filed an answer. (Doc. 9). In the answer,

the Commissioner maintains that the decision denying Plaintiff’s applications was

made in accordance with the law and is supported by substantial evidence. (Doc. 9,

p. 2). Along with her answer, the Commissioner filed a certified transcript of the

administrative record. (Doc. 10).

Plaintiff’s Brief (Doc. 13) and the Commissioner’s Brief (Doc. 14) have been

filed. Plaintiff did not file a reply brief. 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

substantial evidence in the record.2 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.”3 Substantial evidence is

administrative proceedings.” (Doc. 13, p. 23). Plaintiff does not seek an award of

benefits at the District Court level.

2 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).

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

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less than a preponderance of the evidence but more than a mere scintilla.4 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.5 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.”6 “In determining if the Commissioner’s decision is supported

by substantial evidence the court must scrutinize the record as a whole.”7

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

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

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

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

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

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

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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).8

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

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

finder.”10

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:

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

9 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 . . . .”).

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

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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 505.11

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.”12 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.13 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

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

12 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a).

13 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).

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retirement age, and became disabled prior to the date on which he or she was last

insured.14

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

five-step sequential evaluation process.15 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”).16

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).”17 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.18

14 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).

15 20 C.F.R. § 404.1520(a).

16 20 C.F.R. § 404.1520(a)(4).

17 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).

18 20 C.F.R. § 404.1545(a)(2).

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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.19 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

IV. DISCUSSION

Plaintiff raised the following issue in her statement of errors:

1. The ALJ failed to “probe into, inquire of, and explore all the

relevant facts” regarding Plaintiff’s self-described limitations

from her pain, resulting in an RFC finding that does not

accurately reflect all of her impairments.

(Doc. 13, p. 3).

We will begin our analysis by summarizing the ALJ’s findings, and then will

address Plaintiff’s argument.

1942 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512(a); Mason, 994 F.2d at 1064.

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

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

In his October 2021 decision, the ALJ found that Plaintiff met the insured

status requirement of Title II of the Social Security Act through June 30, 2021.21

(Admin. Tr. 547-48; Doc. 10-8, pp. 8-9). Then, Plaintiff’s Title II applications were

evaluated at steps one through four of the sequential evaluation process.

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

activity at any point between August 24, 2015 (Plaintiff’s alleged onset date), and

June 30, 2021 (Plaintiff's date last insured) (“the relevant period”). Id.

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

following medically determinable severe impairments: degenerative disc disease of

the cervical spine; degenerative disc disease of the lumbar spine status post

laminectomy and fusion; and hernia status post-surgical repair. Id. The ALJ also

found that Plaintiff’s anxiety was medically determinable, but non-severe. Id.

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

21 At the June 15, 2021, hearing the ALJ told the Plaintiff that her last date of insured

was December 31, 2020. (Admin. Tr. 572; Doc. 10-8, p. 33). The ALJ repeated the

December 31, 2020, date again at the September 9, 2021, hearing. (Admin. Tr. 588;

Doc. 10-8, p. 49). Plaintiff earned four qualifying quarters every year from 1996 to

June 30, 2016. (Admin. Tr. 870-71; Doc. 10-11, pp. 11-12). Her alleged onset date

is August 24, 2015. The result in this case would be the same whichever date is the

date last insured.

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

(Admin. Tr. 549; Doc. 10-8, p. 10).

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

sedentary work as defined in 20 C.F.R. § 404.1567(a) except that:

The claimant can occasionally push and/or pull with the upper and

lower extremities, such as operating levers, hand controls, pedals, and

foot control. Further she can occasionally stoop, crouch, kneel, use

ramps, and climb stair, and can perform jobs that do not require

balancing, crawling, or climbing on ladders, ropes, or scaffolding.

Additionally she can reach overhead occasionally. Lastly, she can

tolerate occasional exposure to vibrations, and can perform jobs that do

not require exposure to wet or slippery conditions or other workplace

hazards such as unprotected heights and dangerous and moving

machinery.

(Admin. Tr. 550; Doc. 10-8, p. 11).

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

engage in her past relevant work as an administrative assistant (DOT# 169.167-010),

which is a sedentary, skilled position as generally performed, and as a senior

production assistant (DOT# 221.382-018), which is a sedentary, semi-skilled

position as generally performed and as actually performed. (Admin. Tr. 557; Doc.

10-8, p. 18). To support his conclusion, the ALJ relied on testimony given by a

vocational expert during Plaintiff’s administrative hearing. (Admin. Tr. 558; Doc.

10-8, p. 19). The ALJ also determined that, given Plaintiff’s age, education, work

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experience, and RFC, Plaintiff could perform other jobs that existed in significant

numbers in the national economy, such as order clerk (DOT# 209.567-014), credit

checker (DOT# 237.367-014), lens inserter (DOT# 713.687-026), each of which are

sedentary, unskilled positions with at least 27,112 jobs in the national economy.

The ALJ then concluded Plaintiff was not under a disability at any time from

August 24, 2015, the alleged onset date, through June 30, 2021, the date last insured.

(Admin. Tr. 559; Doc. 10-8, p. 20).

B. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT THE ALJ’S DECISION

In this case, the following medical sources issued opinions: Dr. Stephen P.

Falatyn (treating source), Dr. Allister R. Williams (treating source), Dr. Lawrence

Schaffzin (state agency consultant), and Dr. Kevin Wood (treating non-acceptable

medical source). The ALJ gave “no,” “limited,” or “little” weight to each opinion.

No weight was given to opinions that Plaintiff was “out of work” by Dr.

Falatyn and Dr. Williams. (Doc. 554; Doc. 10-8, p. 15). The ALJ discounted these

opinions pursuant to 20 C.F.R. § 404.1527(d), which explains that medical source

statements on issues reserved to the Commissioner—like statements that a claimant

cannot work—are not entitled to any special significance.

In addition to notes that Plaintiff would be “out of work,” Dr. Williams also

completed two functional capacity assessments. In both assessments, Dr. Williams

assessed that Plaintiff’s severe back and neck pain would result in physical

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limitations consistent with less than sedentary work. In the first opinion, he assessed

that Plaintiff could: sit for two hours per eight-hour workday; stand/walk for less

than two hours per eight hour workday; occasionally lift and carry less than ten

pounds; occasionally climb stairs; and never twist, stoop, crouch, or climb ladders.

He also opined that Plaintiff would need frequent unscheduled breaks, would

occasionally need to use a cane, would be off task 25% of each workday, and would

be absent more than four days per month. (Admin. Tr. 434-438; Doc. 10-7, pp. 203-

207). In the second opinion he included additional limitations to Plaintiff’s ability to

sit. (Admin. Tr. 1217-1221; Doc. 10-13, pp. 238-242).

The ALJ gave “little” weight to Dr. Williams’s first assessment and “limited”

weight to his second. Although he addressed each opinion separately in the decision,

the ALJ’s reasoning for discounting these opinions was almost identical. The ALJ

explained:

To the extent the doctor’s opinion supports that the claimant is capable

of doing sedentary work, his opinion is consistent with, and supported

by, the longitudinal record, in all other aspects it is not consistent with

or supported by the longitudinal record. Specifically, while the claimant

had lumbar surgery in December 2015, her examination thereafter

consistently note no atrophy, no edema, and no clubbing clonus, or

cyanosis. Also, the positive finding are noted to fluctuate, in that while

there are some examinations noting pain with lumbar range of motion,

positive straight leg raise testing, and some cervical and lumbar

tenderness, while other examinations reflect normal findings.

Moreover, the post-surgery diagnostics, notably the lumbar x-rays and

MRIs, cervical MRIs and x-rays, the thoracic MRI and the EMG/NCS

tests do not support these findings. Additionally, there is nothing in the

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record to support the doctors finding that the claimant will be off task

25% of the workday or miss 4 or more days from work a month with

the physical examination findings and diagnostic testing is considered.

Lastly, as there is no indication that the claimant needs to utilize a cane

for walking in the record, the doctor’s notation of the need for one is

not supported by the record. For these reasons, the doctor’s opinion is

given limited weight.

(Admin. Tr. 555; Doc. 10-8, p. 16).

Like Dr. Williams, Dr. Wood also assessed that Plaintiff had limitations that

are consistent with less than sedentary work. (Admin. Tr. 1759-1761; Doc. 10-13,

pp. 780-782). He opined that Plaintiff could stand for one hour in a day, walk for

two hours in a day, sit for one hour in a day, occasionally lift and carry less than ten

pounds, occasionally bend, and never squat, crawl, climb, or balance. The ALJ gave

“little” weight to Dr. Wood’s opinion for the same reasons Dr. Williams’s opinions

were discounted. (Doc. 556; Doc. 10-8, p. 17).

Dr. Schaffzin assessed that Plaintiff had limitations consistent with the

performance of a range of light work. (Admin. Tr. 645-648; Doc. 10-9, pp. 26-28).

In addition, he limited Plaintiff to occasional climbing ladders, climbing ropes,

climbing scaffolds, stooping and crouching, and frequent crawling. He assessed that

Plaintiff should avoid exposure to extreme heat, humidity, fumes, odors, dusts,

gases, poor ventilation, and hazards. The ALJ gave “little” weight to this assessment,

reasoning that it was an overestimate of Plaintiff’s capabilities, and included

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unnecessary environmental limitations. (Admin. Tr. 555; Doc. 10-8, p. 16). In

support of this reasoning the ALJ explained:

For instance, when the claimant’s lumbar surgery in December of 2015,

and her post-surgery examinations are considered, reflecting

fluctuating limited range of motion, tenderness, straight leg testing, and

a gait shifting between normal and antalgic, as well as the post-surgical

lumbar x-rays and MRIs, and the cervical x-rays and MRIs, along with

the claimant’s testimony and complaints, the undersigned finds that the

record supports limiting the claimant to sedentary work with the

foregoing limitations. That said, there is nothing in the record to support

the heat, humidity, and pulmonary environmental limitations the doctor

assessed.

(Admin. Tr. 556; Doc. 10-8, p. 17).

In her brief, Plaintiff alleges that that ALJ’s decision is not supported by

substantial evidence because the ALJ failed to analyze “other evidence” including

the opinions of medical sources and only selectively reviewed the objective medical

evidence and Plaintiff’s activities of daily living. (Doc. 13, p. 7-9). Plaintiff argues:

[C]ontrary to the ALJ’s assertion, the objective medical evidence also

supports Plaintiff’s description of the intensity, persistence, and

limiting effects of her symptoms. In fact, the ALJ’s own discussion of

the objective evidence belies his conclusion. Up until his “punchline”

finding on page 14 of his decision, Tr. 557, announcing that Plaintiff’s

application for benefits was denied, the ALJ’s analysis of the record

reads very much like a favorable decision. The ALJ recognized that

positive exam findings and imaging led to spinal fusion surgery in

December 2015 Tr. 551. He conceded subsequent “examinations note

positive Patrick Faber tests, positive distraction tests, positive straight

leg raise tests, reduced cervical and lumbar range of motion, cervical

and lumbar spasm, cervical and lumbar tenderness, tenderness in the

left shoulder and bilateral hips, reduced strength, decreased sensation,

positive Tinel’s sign bilaterally, reduced right hip range of motion and

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a positive left shoulder impingement sign…” Tr. 552. He

acknowledged findings of antalgic gait. Id. He recognized MRI

findings and x-rays from June 2016 through July 2020 showed canal

and foraminal stenosis, disc herniation, narrowing at C5-C6, C6-C7,

cervical diffuse degenerative changes, presumed bilateral L5

spondylolysis, Grade 1 spondylolisthesis, and thin lucent halos

surrounding the screws bilaterally at L5 and S1, mild multilevel

degenerative changes, as well as the posterior instrumented fusion at

L5-S1 and grade 1/2 anterolisthesis, and an approximately 2-3 mm

increased retrolisthesis C4 on C5 with extension. Tr. 551; 552; 553.

Although the ALJ’s recitation does generally refer to non-specific

normal exam findings and imaging other than this, his own description

of the evidence is consistent with Plaintiff’s description of limitations

related to persistent, severe pain.

(Doc. 13, pp. 9-10). Plaintiff next alleges that that ALJ’s decision is not supported

by substantial evidence because the “ALJ rejected every medical opinion[,]

assigning each little or no weight,” causing “his interpretation of the objective

evidence” to be mere “lay analysis.” (Doc. 13, p. 10). Plaintiff argues:

The ALJ assigned “little weight” to both [treating physician] opinions,

asserting that each was “not consistent with or supported by

longitudinal record.” Tr. 554; 555. The ALJ identified “no atrophy, no

edema, and no clubbing, clonus, or cyanosis” as findings not supporting

these opinions. Id. Yet the ALJ failed to explain why the lack of these

specific findings undermined the opinions considering the plethora of

positive exam findings in the record. The ALJ conceded the “positive

findings…noting pain with lumbar range of motion, positive straight

leg raise testing, and some cervical and lumbar tenderness,” in the

record, but dismissed these observing there was fluctuation in these

findings. Id. But, of course, such a rationale is improperly highly

selective, emphasizing the evidence demonstrating “waning”, while

failing to acknowledge the significance of evidence describing

“waxing.” There is no nexus or “logical bridge” between the negative

findings the ALJ identified and the rejection of Dr. Williams’ opinions.

Merely identifying some negative findings in a record containing both

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negative and positive findings does not allow for meaningful review.

An ALJ must “do more than acknowledge such inconsistent evidence

he must identify conflicting records with specificity and provide

reasons for crediting certain objective clinical findings over others.”

Batdorf v. Colvin, 2016 U.S. Dist. LEXIS 114374, at* 27 (M.D. Pa.

Aug. 26, 2016).

Nor is there any indication the ALJ even considered that the regulations

favor the opinions of treating sources. See §404.1527(c)(2)

(“Generally, we give more weight to opinions from your treating

sources, since these sources are likely to be the medical professionals

most able to provide a detailed, longitudinal picture of your medical

impairment(s) and may bring a unique perspective to the medical

evidence…”) In fact, the regulations unambiguously require that

“[w]hen the treating source has reasonable knowledge of your

impairment(s), we will give the source’s opinion more weight than we

would give it if it were from a nontreating source.” §404.1527(c)(2)(ii)

(emphasis added). The ALJ did not identify Dr. Williams as a treating

source, no less Plaintiff’s treating surgeon, and there can be no dispute,

as such, he has a “reasonable knowledge” of Plaintiff’s impairments.

The ALJ never even acknowledged the extent of the relationship, since

October 2015, Tr. 69, contrary to the clear statement that “[g]enerally,

the longer a treating source has treated you and the more times you have

been seen by a treating source, the more weight we will give to the

source’s medical opinion.” §404.1527(c)(2)(i) (emphasis added). Or his

preferred status as a medical specialist. See §404.1527(c)(5) (“We

generally give more weight to the medical opinion of a specialist about

medical issues related to his or her area of specialty than to the medical

opinion of a source who is not a specialist.”)

In sum, the ALJ rejected both treating opinions consistent with

Plaintiff’s self-described limitations without analyzing many factors

the regulations stringently require be considered. The evidence also

supports the opinions, and perhaps most importantly, does not

reasonably or logically support the ALJ’s conclusion that the record is

inconsistent with the opinions.

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(Doc. 13, pp. 12-14). Plaintiff also alleges that that the ALJ failed to evaluate the

“other evidence” factors which the ALJ is required to evaluate under 20 C.F.R.

§ 404.1529(c)(3), including some of Plaintiff’s alleged daily activities; the location,

duration, frequency, and intensity of Plaintiff’s pain or other symptoms;

precipitating and aggravating factors; the type, dosage, effectiveness, and side

effects of medication; and other measures used to relieve pain. (Doc. 13, pp. 14-20).

In response, the Commissioner contends that the RFC is supported by

substantial evidence and that the ALJ followed the applicable regulations, (Doc. 14,

pp. 11-13). The Commissioner argues that, regarding the objective medical

evidence, the ALJ correctly explained that the objective signs and findings were not

particularly adverse and supported his findings with the following objective medical

evidence. (Doc. 14, pp. 11-15). The Commissioner states:

Although some examinations noted positive Patrick Faber tests,

positive distraction tests, positive straight leg raise tests, reduced

cervical and lumbar range of motion, cervical and lumbar spasm,

cervical and lumbar tenderness, tenderness in the left shoulder and

bilateral hips, reduced strength, decreased sensation, positive Tinel’s

sign bilaterally, reduced right hip range of motion and a positive left

shoulder impingement sign, many of these findings were not consistent

(Tr. 552, citing Tr. 254, 500, 1232, 1241, 1354, 1470);

For example, many findings were consistently negative on

examinations and showed no cervical or lumbar tenderness, negative

straight leg raise tests, full range of cervical and lumbar motion, normal

sensation, and normal strength as well as no clonus, normal reflexes, no

clubbing, no cyanosis, no edema, no atrophy, no peripheral edema,

negative femoral nerve stress tests bilaterally, and negative Hoffman

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and Spurling’s signs (Tr. 552, citing Tr. 342, 374, 379, 383, 385, 385,

389, 473, 479-80, 482-83, 496, 499, 502, 506, 512, 515, 524, 527, 530,

1308, 1312, 1337, 1357-58, 1470);

Although a few examinations noted an antalgic gait (e.g., Tr. 524, 530,

1232), for the large part Plaintiff’s gait was normal (e.g., Tr. 552 264,

506, 521, 527, 1566); and

Regardless of whether Plaintiff’s gait was noted to be antalgic or

normal, there was no indication of any assistive devices being used (Tr.

552; see, e.g., Tr. 264, 269, 312).

(Doc. 14, pp. 14-15). The Commissioner also contends that Plaintiff errs in alleging

that the evidence supports Plaintiff’s statements of her symptoms, that the ALJ

correctly assigned little weight to Dr. Williams’s opinions, that the ALJ recognized

that Dr. Williams was a treating physician because the ALJ discussed Dr. Williams’s

treatment records when reviewing the evidence, and that the ALJ discussed the

location and duration of Plaintiff’s pain. (Doc. 14, pp. 19-25).

We will first address Plaintiff’s allegations that the RFC determination is not

supported by substantial evidence because the ALJ did not give proper preference to

a well-supported treating physician opinion and because the ALJ rejected all medical

opinions in the record, necessarily relying upon lay interpretation of evidence.

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It is the ALJ’s duty to assess a claimant’s RFC and the ALJ must consider all

of the evidence, not only the medical opinions of record.22 For claims filed before

March 27, 2017, like this one, the ALJ assigns the weight he or she gives to a medical

opinion.23 If “a treating source’s medical opinions on the issue(s) of the nature and

severity of [a claimant’s] impairments [are] well-supported by medically acceptable

clinical and laboratory diagnostic techniques and [are] not inconsistent with the other

substantial evidence in [the claimant’s] case record,” the ALJ “will give it

controlling weight.”24 Where, as here, the ALJ does not give a treating source’s

medical opinion controlling weight, the ALJ analyzes the opinion in accordance with

a number of factors: the “[l]ength of the treatment relationship and the frequency of

examination,” the “[n]ature and extent of the treatment relationship,” the

“[s]upportability” of the opinion, the “[c]onsistency” of the opinion with the record

as whole, the “[s]pecialization” of the treating source, and any other relevant

factors.25

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.”).

23 20 C.F.R. § 404.1527(c).

24 20 C.F.R. § 404.1527(c)(2).

25 20 C.F.R. § 404.1527(c)(2)–(c)(6).

Page 21 of 29

The ALJ states that after the 2015 surgery Plaintiff’s examinations

consistently note “no clonus, normal reflexes, no clubbing, cyanosis, or edema, no

atrophy, no peripheral edema, negative femoral nerve stress tests bilaterally, and

negative Hoffman and Spurling’s signs.” (Doc. 10-8, p. 13; Admin. Tr. 552). The

ALJ does not explain why the absence of these symptoms is relevant or contradictory

to Dr. Williams’s opinions which were consistent in 2017 and 2019 and contained

detailed, severe limitations to Plaintiff’s daily activities and ability to perform

consistently on a regular basis. This is especially important because there are no

medical opinions in the record that support Plaintiff’s ability to perform consistently

and without the severe limitations indicated by Dr. Williams.

An ALJ may reject “a treating physician’s opinion outright only on the basis

of contradictory medical evidence” and not due to his or her own credibility

judgments, speculation, “amorphous impressions, gleaned from the record,” or lay

opinion.26 When rejecting treating physician opinions, “an ALJ may not make

‘speculative inferences from medical reports.’”27 The Third Circuit specifically

rejected cherry-picked treatment notes and credibility assessments alone as

substantial evidence for discrediting a medical opinion.28 “In the Third Circuit, an

26 Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000) (citations omitted).

27 Id. at 317.

28 Id.

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ALJ may not reject a supported treating source medical opinion with only lay

interpretation of medical evidence. ALJs must also give special deference to medical

opinions from treating physicians and require good reasons to reject them in favor

of evidence from non-treating sources . . . .”29 “[M]erely citing to contradictory

medical evidence, as opposed to contradictory medical opinion, is insufficient.”30 In

Ferguson v. Schweiker, 765 F.2d 31 (3d Cir. 1985), the Third Circuit found that an

ALJ acted improperly and “impermissibly substituted his own judgment for that of

a physician” where the ALJ rejected the treating physician’s opinion, instead relying

upon the claimant’s a lack of “end-organ damage,” “control of the condition by

medication,” objective evidence indicating only “non-specific EKG findings,”

“‘mild’ arthritis,” and failure to see a specialist for certain problems to find the

claimant not disabled.31 The Third Circuit stated: “[I]f the ALJ believed that [the

treating physician’s] reports were conclusory or unclear, it was incumbent upon the

ALJ to secure additional evidence from another physician.”32 To discredit the

opinion of a treating physician under the applicable regulations, an ALJ must

29 Burns v. Colvin, 156 F. Supp. 3d 579, 588–90 (M.D. Pa. 2016) (collecting cases

decided by the Third Circuit Court of Appeals).

30 Burns, 156 F. Supp. 3d 579, 588–90 (M.D. Pa. 2016) (citing Ferguson v.

Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)).

31 Id. at 588 (citing Ferguson, 765 F.2d at 37).

32 Ferguson, 765 F.2d at 37.

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wholistically review the treatment notes and also rely upon an opinion by another

medical source.33

In Social Security cases, ALJs are permitted to find more restrictive RFCs

than medical opinions indicate but not less restrictive RFCs than indicated in the

medical opinions.34 In the Third Circuit, an RFC assessment is not supported by

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

degree of ability—than opined by any medical professional without other evidence

that supports the ALJ’s RFC determination.35 And where no medical opinion was

33 Torres v. Barnhart, 139 F. App'x 411, 414 (3d Cir. 2005).

34 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.”).

35 See Doak v. Heckler, 790 F.2d 26, 26-29 (3d Cir. 1986); 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); see McKean v. Colvin, 150 F. Supp. 3d 406, 418 (M.D. Pa.

2015).

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found credible by the ALJ, the ALJ can rarely form an RFC supported by substantial

evidence.36

Here, the ALJ rejected the opinions of Dr. Williams dated May 17, 2017, and

May 9, 2019, to the extent that they would lead to a conclusion of disability.37 In

both medical opinions, Dr. Williams limited Plaintiff to two or fewer hours each of

standing, sitting, and walking during an eight-hour workday and indicated Plaintiff

would need “frequent unscheduled breaks” throughout the workday. (Admin. Tr.

554-55; Doc. 10-8, pp. 15-16). Dr. Williams also twice opined that Plaintiff may

sometimes need a cane to ambulate and limited Plaintiff’s lifting and carrying to less

than ten pounds occasionally. Id. Finally, Dr. Williams opined each time that

Plaintiff’s reaching was limited both in front and overhead and that Plaintiff would

be off task 25% or more of each workday and would miss four or more days of work

each month. Id. In rejecting each opinion, the ALJ relied upon a lack of atrophy,

edema, clubbing, clonus, and cyanosis after surgery, as well as a normal range of

motion, negative straight leg raise testing, and lack of tenderness on some but not all

36 McKean, 150 F. Supp. 3d at 418 (“Rarely can a decision be made regarding a

claimant’s residual functional capacity without an assessment from a physician

regarding the functional abilities of the claimant.”).

37 (Admin. Tr. 555; Doc. 10-8, p. 16) (“To the extent that the doctor’s opinion

supports that the claimant is capable of doing sedentary work, his opinion is

consistent with, and supported by the longitudinal record, in all other aspects it is

not consistent with or supported by the longitudinal record.”).

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examinations after surgery. Id. Finally, the ALJ states without citation to any specific

evidence that “the cervical, thoracic, and lumbar MRIs, the cervical and lumbar x-

rays, and the EMG/NCS studies do not support” Dr. Williams’s opinions and that

there is no support in the record for off-task behavior 25% of the time, missing more

than four workdays per month, or cane use. (Admin. Tr. 555; Doc. 10-8, p. 16).

In the ALJ’s rejection of Dr. Williams’s opinions, the ALJ has not cited to any

facts or medical findings regarding imaging or other studies by medical

professionals. (Admin. Tr. 552; Doc. 10-8, p. 13). Therefore, the ALJ can, at best,

refer to the earlier overviews of the imaging and studies, which can be summarized

thusly: The ALJ found that the imaging indicated that Plaintiff’s cervical, thoracic,

and lumbar spine were imperfect but not worse than a spine suited to the RFC found

by the ALJ. (Admin. Tr. 552-53; Doc. 10-8, pp. 13-14). The ALJ does not rely upon

any medical opinion in finding Plaintiff’s spine to be only as bad as the ALJ states.

Id.

In hypothetical question two the VE was asked if the Plaintiff had to change

positions every 30 minutes would there be jobs in the national economy. The VE

said yes. (Doc. 10-8, p. 78). But in hypothetical question three when asked if the

plaintiff had to change positions every 5 minutes would there be jobs in the national

economy the VE answered “No.” (Doc. 10-8, p. 79). When asked if the hypothetical

Page 26 of 29

employee was off task 20% of the workday or had to leave early 2 days per month,

the VE again said, “no jobs.” (Doc. 10-8, p. 79). These hypothetical questions are

supported by the multiple reports of Dr. Williams and Dr. Wood and the statement

from Plaintiff (Ex. 29E) and her live-in girlfriend (Ex. 30E). The ALJ mentions the

“longitudinal record” seven times, but the ALJ does not explain why these reports

are not also a part of the “longitudinal record” that he claims support a less restrictive

finding.

In rejecting Dr. Williams’s opinions, the ALJ expressly relies upon his own

review of the medical record and of the cervical, thoracic, and lumbar MRIs, the

cervical and lumbar x-rays, and the EMG/NCS studies. Furthermore, when rejecting

Dr. Williams’s opinions, the ALJ was unable to rely upon any other medical

opinions in the record because the ALJ rejected all of the other opinions as having

“little weight.” The ALJ stated that the only other medical opinion, in which Dr.

Schaffzin found a much less restrictive RFC, was given “little weight” because Dr.

Schaffzin’s medical opinion was “an overestimate of the claimant’s abilities, and

also include[d] unsupported limitations.” (Admin. Tr. 556; Doc. 10-8, p. 17).

Therefore, the ALJ, in rejecting the treating physician’s opinions, had no medical

opinion to support the ALJ’s findings of “little” and “limited” weight. The ALJ,

therefore, necessarily relied upon his own lay interpretation of the evidence, which

is impermissible under the applicable regulations.

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Because the ALJ assigned little weight to the treating physician’s medical

opinions without support by any other medical opinion, 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, Plaintiff’s

remaining claims of error will not be addressed. We note, however, that the ALJ

failed to take into account the significant amount of pain medication and pain

remediation that Plaintiff engaged in after her spinal surgery. Since those pain

management regimens were all proscribed and continued for multiple years they

certainly must be evidence of the severity and persistence of the Plaintiff’s pain

levels, supporting the doctor’s conclusion that she would be off task frequently and

miss multiple days of work per month. However, since “a remand may produce

different results on these claims, making discussion of them moot.”38

[The next page contains the Conclusion]

38 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 is Granted as follows:

(1) The final decision of the Commissioner is VACATED.

(2) This case is 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 Nicole Loverso.

(4) Appropriate Orders will be issued.

Date: March 29, 2023 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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