Stoner v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ANGELA S,1 ) CIVIL ACTION NO. 4:22-CV-823

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

COMMISSIONER OF SOCIAL )

SECURITY, )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Angela S. (“Plaintiff”), 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 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 the undersigned Magistrate Judge upon consent of the

parties pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil

Procedure. (Doc. 7).

1 To protect the privacy interests of plaintiffs in social security cases, we have

adopted the recommendation of the Committee on Court Administration and Case

Management of the Judicial Conference of the United States that federal courts

should refer to plaintiffs in such cases by their first name and last initial.

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Plaintiff alleges that the ALJ’s analysis of her symptoms, and her ability to

maintain regular work attendance, is not adequately explained. We agree. After

reviewing the parties’ briefs, the Commissioner’s final decision, and the relevant

portions of the certified administrative transcript, we find the Commissioner's final

decision is not supported by substantial evidence. Accordingly the Commissioner’s

final decision will be VACATED and this case will be REMANDED for further

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

II. BACKGROUND & PROCEDURAL HISTORY

On March 14, 2018, Plaintiff protectively filed an application for disability

insurance benefits under Title II of the Social Security Act. (Admin. Tr. 15; Doc.

10-2, p. 16). In this application, Plaintiff alleged she became disabled on March 1,

2017, when she was fifty-two years old, due to the following conditions:

degenerative disc disease, gastroparesis, arthritis, high blood pressure,

cardiomyopathy, and diabetes type 2. (Admin. Tr. 300; Doc. 10-6, p. 12). Plaintiff

alleges that the combination of these conditions affects her ability to lift, squat, bend,

stand, reach, walk, sit, kneel, and climb stairs. (Admin. Tr. 317; Doc. 10-6, p. 29).

She asserts that her difficulties sitting, standing, and walking, coupled with her

inability to maintain regular work attendance due to chronic pain, make it impossible

for her to work.

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Plaintiff is a high school graduate. (Admin. Tr. 301; Doc. 10-6, p. 13). Before

the onset of her impairments, Plaintiff worked as a cashier at Walmart for almost

thirty years. (Admin. Tr. 23; Doc. 10-2, p. 24). When Plaintiff applied for benefits

in March 2017, Plaintiff was on short term disability due to stomach pain.

On November 13, 2018, Plaintiff’s application was denied at the initial level

of administrative review. (Admin. Tr. 15; Doc. 10-2, p. 16). On November 30, 2018,

Plaintiff requested an administrative hearing. Id.

In January 2019, Plaintiff returned to work. On September 12, 2019,

Administrative Law Judge Lawrence J. Neary (the “ALJ”) held a brief hearing,

which was continued to afford Plaintiff time to retain a representative. Id. Two

months later, in November 2019, Plaintiff stopped working, primarily because her

stomach pain made it impossible to maintain regular attendance. She also asserts that

her pain significantly restricted her ability to sit, stand, and walk.

On May 25, 2021, Plaintiff, assisted by her counsel, appeared and testified

during a telephone hearing before the same ALJ. (Admin. Tr. 15; Doc. 10-2, p. 16).

On August 23, 2021, the ALJ issued a decision denying Plaintiff’s application for

benefits. (Admin. Tr. 24; Doc. 10-2, p. 25). On August 27, 2021, Plaintiff requested

that the Appeals Council review the ALJ’s decision. (Admin. Tr. 249; Doc. 10-4, p.

142). Plaintiff submitted new evidence, in the form of a letter from her spouse, that

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was not available to the ALJ when the ALJ’s decision was issued. (Admin. Tr. 7;

Doc. 10-2, pp. 8-9).

On March 24, 2022, the Appeals Council denied Plaintiff’s request for review.

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

On May 24, 2022, Plaintiff filed a complaint in the district court seeking

judicial review. (Doc. 1).

On July 15, 2022, the Commissioner filed an answer. (Doc. 9). 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. 9,

¶ 5). Along with her answer, the Commissioner filed a certified transcript of the

administrative record. (Docs. 10, 11).

Plaintiff’s Brief (Doc. 12) and the Commissioner’s Brief (Doc. 15) have been

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

III. LEGAL STANDARDS

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

standards relevant to our review. Therefore, we will discuss the limited scope of this

Court’s review of an ALJ decision, the five-step sequential evaluation process used

to adjudicate claims at the administrative level, and the guidelines for the evaluation

of a claimant’s symptoms.

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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

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 in the record.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

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).

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).

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substantial evidence under sentence four of 42 U.S.C. § 405(g), the court may

consider any evidence that was in the record that was made before the ALJ.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

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

7 Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001) (“when the Appeals

Council has denied review the district court may affirm, modify, or reverse the

Commissioner's decision, with or without a remand based on the record that was

made before the ALJ (Sentence Four review).”). The claimant and Commissioner

are obligated to support each contention in their arguments with specific reference

to the record relied upon. L.R. 83.40.4; United States v. Claxton, 766 F.3d 280, 307

(3d Cir. 2014) (“parties . . . bear the responsibility to comb the record and point the

Court to the facts that support their arguments.”); Ciongoli v. Comm’r of Soc. Sec.,

No. 15-7449, 2016 WL 6821082 (D.N.J. Nov. 16, 2016) (noting that it is not the

Court’s role to comb the record hunting for evidence that the ALJ overlooked).

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substantial-evidence standard to the deferential clearly-erroneous

standard).8

To determine whether the final decision is supported by substantial evidence,

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

Furthermore, meaningful review cannot occur unless the final decision is

adequately explained. As the Court of Appeals has noted on this score:

In Burnett [v. Comm’r of Soc. Sec.], we held that an ALJ must clearly

set forth the reasons for his decision. [220 F.3d 112, 119 (3d Cir.

2000)]. 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

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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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

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

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).

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

15 20 C.F.R. § 404.1520(a).

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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

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

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).

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

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jobs exist in significant number in the national economy that the claimant could

perform.20

C. GUIDELINES FOR AN ALJ’S SYMPTOM EVALUATION

The Commissioner’s regulations direct that limitations caused by a claimant’s

symptoms should be incorporated in the RFC assessment to the extent that those

symptoms and limitations are consistent with the “medical” and “other” evidence of

record.21 This is a two-step process. First, considering medical evidence, the ALJ

must decide whether a claimant’s medically determinable impairments could

reasonably be expected to cause the symptoms alleged. Second, considering medical

and other evidence relevant to the factors articulated in 20 C.F.R. § 404.1529(c)(3),

20 20 C.F.R. § 404.1512(b)(3); Mason, 994 F.2d at 1064.

21 20 C.F.R. § 404.1529. In this context, “medical” evidence is objective

evidence is “evidence obtained from the application of medically acceptable clinical

and laboratory diagnostic techniques, such as evidence of reduced joint motion,

muscle spasm, sensory deficit or motor disruption.” 20 C.F.R. § 404.1529(c)(2).

“Other” evidence includes: statements a claimant made to medical or other

sources, and to the ALJ about the frequency and duration of symptoms, location of

symptoms, the ability to perform daily activities; information about symptoms

recorded by medical sources such as onset, descriptions of symptoms (to compare

to the claimant’s other statements), precipitating and aggravating factors, and the

success or failure of various treatments; and information from non-medical sources’

observations (to compare how consistent those observations are with the claimant’s

statements). 20 C.F.R. § 404.1529(c)(3).

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an ALJ must decide the extent to which those symptoms limit the claimant’s ability

to work.22

When considering the medical and other evidence at the second step of this

symptom evaluation, the ALJ must evaluate the following factors, where relevant:

daily activities; location, duration, frequency, and intensity of pain and other

symptoms; factors that precipitate and aggravate the symptoms; the type, dosage,

effectiveness and side effects of any medication; treatment, other than medication,

received for relief of pain; any other measures used to relieve pain (e.g., rest, heat,

ice, etc.); and any other factors concerning a claimant’s limitations and restrictions

due to pain or other symptoms.23 A factor is “relevant” where there is information

22 The Social Security Administration recognizes that, although medical

evidence is a useful indicator to assist an ALJ in making a reasonable conclusion

about the effect a symptom might have on a claimant’s ability to work, sometimes

symptoms result in a greater degree of limitation than can be shown by medical

evidence alone. 20 C.F.R. § 404.1529(c)(2)-(3). Although an ALJ could properly

support a decision granting benefits with objective evidence alone, an ALJ “will not

disregard an individual’s statements about the intensity, persistence, and limiting

effects of symptoms solely because the objective medical evidence does not

substantiate the degree of impairment-related symptoms alleged by the [claimant].”

SSR 16-3p, 2017 WL 5180304, at *5-6. Therefore, in a decision where a claimant’s

allegations about the degree of his or her impairment are found “not entirely

consistent” with the record, an ALJ is required to consider both “medical” and

“other” evidence.

23 20 C.F.R. § 404.1529(c)(3).

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on that topic in the evidence of record.24 An ALJ is required to “explain which of an

individual’s symptoms [the ALJ] found consistent or inconsistent with the evidence

in [the claimant’s] record and how [the ALJ’s] evaluation of the individual’s

symptoms led to [the ALJ’s] conclusions.”25

IV. DISCUSSION

In her statement of errors, Plaintiff asserts:

(1) “The ALJ failed to account for the ‘total limiting effects’ of Plaintiff’s

impairments and improperly excluded limitations, contrary to 20 C.F.R.

§§ 404.1545 and 404.1529.”

(Doc. 12, p. 3).26

Based on our review of Plaintiff’s brief, she appears to be raising the following

issues:

(1) The ALJ did not adequately explain how he concluded that the alleged

sitting, standing and walking limitations were not consistent with the

medical and other evidence of record.

24 SSR 16-3p, 2017 WL 5180304, at *8. (“If there is no information in the

evidence of record regarding one of the factors, [the ALJ] will not discuss that

specific factor in the determination or decision because it is not relevant to the

case.”).

25 Id.

26 This Court’s Local Rule 83.40.4 provides that Plaintiff’s brief must include,

in numbered paragraphs, “the specific errors committed at the administrative level

which entitle Plaintiff to relief.” L.R. 83.40.4(b). “A general argument that the

findings of the administrative law judge are not supported by substantial evidence is

not sufficient.” Id.

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(2) The ALJ did not adequately explain how he concluded that the alleged

attendance limitation was not consistent with the medical and other

evidence of record.

We will begin our analysis by summarizing the ALJ’s decision. Then will

address each of Plaintiff’s arguments.

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

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

status requirement of Title II of the Social Security Act through June 30, 2024.

(Admin. Tr. 17; Doc. 10-2, p. 18). Then, Plaintiff’s application was evaluated at

steps one through four of the sequential evaluation process.

At step one, the ALJ found that Plaintiff did engage in substantial gainful

activity after her alleged onset date (March 1, 2017) from January 2019 through mid-

November 2019. Id. The ALJ evaluated Plaintiff’s claim during the twelve month

periods during which Plaintiff did not engage in substantial gainful activity (March

1, 2017, through January 2019, and mid-November 2019 through August 23, 2021).

Id.

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

following medically determinable severe impairments: obesity, status post L4-L5

laminectomy and multilevel degenerative disc disease, status post gastric bypass

with adhesions, history of cardiomyopathy, and diabetes. (Admin. Tr. 18; Doc. 10-

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2, p. 19). The ALJ also identified the following medically determinable non-severe

impairments: hypertension, hyperlipidemia, vitamin B and vitamin D deficiencies,

glucocorticoid deficiency (inadequate cortisol production), fatty liver disease, and

hyperparathyroidism. 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

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

(Admin. Tr. 18-19; Doc. 10-2, pp. 19-20).

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) except with:

no climbing of ladders, ropes or scaffolds, and all other postural

activities limited to occasionally and with no exposure to hazards such

as moving machinery or heights.

(Admin. Tr. 19-23; Doc. 10-2, pp. 20-24).

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

engage in her past relevant work as a cashier as it is generally performed in the

national economy. (Admin. Tr. 23-24; Doc. 10-2, pp. 24-25).

The ALJ did not evaluate Plaintiff’s application at step five because Plaintiff

could return to her past relevant work.

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B. EVALUATION OF BACK PAIN, NECK PAIN, AND ABILITY TO SIT,

STAND, AND WALK

Plaintiff alleges that she has debilitating back and neck pain. She asserts that,

as a result of this pain, she is unable to sit for more than thirty minutes at one time,

unable to stand for more than thirty minutes at one time, and unable to walk for more

than forty-five minutes at one time. The ALJ did not credit these limitations, and

Plaintiff contends that the ALJ’s analysis in this regard is inadequate because: the

ALJ failed to discuss isolated clinical findings documenting muscle spasm,

decreased range of motion, irregular gait, and positive straight leg raising tests; and,

the ALJ did not adequately explain why the sitting, standing, and walking limitations

were not consistent with the record. The Commissioner disagrees.

The ALJ provided the following discussion of Plaintiff’s back and neck pain

in his decision:

She continued reporting lower back pain in October 2017, ibuprofen

was not helping, and the claimant would like to go back to taking

Percocet. Treatment records from November 2017 note lower back pain

with a history of previous spinal surgery. The claimant reported that her

back pain did not improve post surgery although she did have

improving radiating leg pain. An X-ray showed lumbar degenerative

disc disease and evidence of a previous laminectomy. When examined,

the claimant had paraspinal musculoskeletal spasms and tenderness,

she walked with a nonantalgic gait, she had a full range of motion of

her hips, knees, and ankles, full motor strength, and equal deep tendon

reflexes (Exhibit 3F). A lumbar MRI from January 2018 showed no

significant stenosis according to the claimant’s orthopedist; there were

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mild degenerative changes of the lumbar spine and degenerative

changes at several disc levels (Exhibit 12F/9, 11-12).

. . . .

Other medical issues include lumbar degenerative disc disease, cervical

degenerative disc disease, and there are some references to neuropathy,

which the undersigned considered under diabetes. When examined in

October 2018, straight leg raises were negative, she had normal strength

and normal muscle tone and a limited range of motion (Exhibit 22F).

Exhibits 30F and 35F reference neuropathy in her feet. Although

present, the record does not establish that this or other impairments

limit standing and walking more than what is noted in the above

residual functional capacity. A cervical MRI from January 2020

showed a history of cervical fusion surgery and mild changes at some

cervical levels (Exhibit 18E/126) while Exhibit 18E/133 notes that the

claimant's arm pain seems to have resolved. She saw a neurosurgeon

who felt there was nothing going on that was surgically amenable. She

has another cervical MRI in April 2021, and Dr. Patel noted some disc

bulges and severe stenosis (Exhibit 37F).

(Admin. Tr. 20, 22; Doc. 10-2, pp. 21, 23).

1. The ALJ’s Failure to Discuss Isolated Clinical Findings

Does Not Require Remand

Plaintiff argues that the ALJ’s decision omits objective evidence documenting

tenderness, muscle spasm, decreased range of motion, gait disturbance, and positive

straight leg raising tests, favorable to her claim.27 She contends that, because the ALJ

ignored relevant evidence that is favorable to her claim, remand is required.

27 She cites to: a November 3, 2017 examination documenting paraspinal

musculature spasming and tenderness, (Admin. Tr. 561; Doc. 11, p. 26); a November

10, 2017 examination documenting a decreased range of motion in Plaintiff’s lumbar

Page 16 of 25

In response, the Commissioner argues:

[W]ith respect to the specific findings that, Plaintiff suggests, the ALJ

ignored, she is wrong to so argue. For example, although Plaintiff

contends that the ALJ ignored an examination where she was observed

with a shuffling gait and two positive straight leg raise tests (Pl.’s Br.

at 13), these one-off findings pale in comparison to the overwhelming

record (more than a mere scintilla of evidence) documenting that

Plaintiff consistently denied issues with walking and examination

findings showed that she had a normal and steady gait and normal

musculoskeletal and spinal findings (see, e.g., Tr. 444, 526, 563, 880,

942, 1024, 1312, 1062, 1619, 1726, 1730, 1736, 1743, 1746, 1748,

1749, 1753, 1764, 1766, 1787, 1790, 1793, 1799).

(Doc. 15, pp. 28-29).

spine, (Admin. Tr. 673; Doc. 11, p. 136); a January 18, 2018 record documenting

paraspinal musculature spasming and tenderness, (Admin. Tr. 880; Doc. 11, p. 343);

an August 6, 2018 treatment record documenting lumbar tenderness and a positive

straight leg raise bilaterally, (Admin. Tr. 1026; Doc. 11, p. 489); an October 12, 2018

examination documenting midline tenderness in the lumbar spine, (Admin. Tr. 1080;

Doc. 11, p. 543); a March 9, 2019 emergency department record documenting

thoracic and lumbar tenderness, (Admin. Tr. 1225; Doc. 11, p. 689); a November 5,

2019 record documenting that Plaintiff was “antalgic on lumbar flexion and

extension and a positive straight leg raise at 70 degrees on the left, (Admin. Tr. 1324;

Doc. 11-1, p. 15); a December 2019 examination documenting that Plaintiff walked

with a shuffling gait, (Admin. Tr. 1732; Doc. 11-3, p. 127); a September 2, 2020

examination documenting that Plaintiff walked with a shuffling gait, (Admin. Tr.

1777; Doc. 11-3, p. 172); and an October 2, 2020 examination documenting that

Plaintiff walked with a limping gait, (Admin. Tr. 1780; Doc. 11-3, p. 174).

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There is no dispute that the ALJ did not discuss every record that appears in

the over 1,800-page transcript. The ALJ has no obligation to do so.28 To hold

otherwise would impose an unreasonable and impractical burden on the ALJ.

Nonetheless, there is an expectation that the ALJ “consider all pertinent medical and

non-medical evidence and ‘explain [any] conciliations and rejections.’”29 Even

assuming that we were to find that the ALJ did not meet his responsibilities because

he did not mention the isolated treatment records documenting pain, spasm,

abnormal gait, decreased range of motion, and other abnormalities, we are not

persuaded that remand is required based on this error alone.

The Commissioner correctly observes that our review in Social Security cases

is limited to the question of whether substantial evidence supports the ALJ’s

conclusion. (Doc. 15, p. 27) (citing Malloy v. Comm’r of Soc. Sec., 306 F. App’x

761, 764 (3d Cir. 2009) (“The presence of evidence in the record that supports a

contrary conclusion does not undermine the [ALJ’s] decision so long as the record

28 Hurr v. Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004) (“There is no

requirement that the ALJ discuss in its opinion every tidbit of evidence included in

the record.”).

29 Burnett, 220 F.3d at 122 (quoting Fargnoli v. Massanari, 247 F.3d 34, 42

(3d Cir. 2001) (“Although we do not expect the ALJ to make reference to every

relevant treatment note in a case where the claimant . . . has voluminous medical

records, we do expect the ALJ, as the factfinder, to consider and evaluate the

medical evidence in the record consistent with his responsibilities under the

regulations and case law.”)).

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provides substantial support for that decision.”)). It is not whether there is some

evidence in the record that could support a contrary result. Nonetheless, we will

recommend remand based on Plaintiff’s other arguments because several aspects of

the ALJ’s symptom evaluation are not adequately explained.

2. The ALJ Did Not Adequately Explain Why He Rejected the

Sitting, Standing, and Walking Limitations

Plaintiff argues that the ALJ did not discuss certain “other” evidence pertinent

to his analysis of the relevant 20 C.F.R. § 404.1529(c)(3) factors. Specifically, she

argues that the ALJ did not discuss or analyze: Plaintiff’s statements about her daily

activities; the consistency of Plaintiff’s reports of pain and physical limitation with

those documented in her treatment records; or the types of treatment Plaintiff has

tried to relieve her pain without success.

In response, the Commissioner argues:

Numerous courts have explained that an ALJ is not required to

document specific findings regarding each of the section 1529 factors.

See, e.g., Ladd v. Astrue, No. 12-4553, 2014 WL 2011638, at *8 and

n.2 (E.D. Pa. May 16, 2014) (“[N]either this policy statement [SSR 96-

7p], nor § 404.1529(c)(3) (the governing regulation), mandates a

specific finding as to each of the seven factors listed in §

404.1529(c)(3)(i)-(vi).”); Heeman v. Colvin, No. 2:13-cv-3607-TMC,

2015 WL 5474679, at *11 (D.S.C. Sept. 16, 2015) (“There is no

requirement that the ALJ state specific findings on each and every

[Section 404.1529(c)] factor.”); Wolfe v. Colvin, No. 3:14-cv-4, 2015

WL 401013, at *4 (N.D. W. Va. Jan. 28, 2015); Epperson v. Astrue,

No. 2:11-cv-12-D, 2012 WL 3862717, at *4 (E.D.N.C. Sept. 5, 2012).

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(Doc. 15, p. 32). The Commissioner also contends that the ALJ specifically

considered the “other” evidence relevant to the 20 C.F.R. § 404.1529(c) factors

throughout his analysis. (Doc. 15, pp. 32-37).

The Commissioner is correct that the ALJ need not explicitly address each 20

C.F.R. § 404.1529(c)(3) factor. However, Plaintiff does not argue that the ALJ is

required to address every factor. Rather, she asserts that the ALJ is required to

provide more than a summary of evidence and conclusory statement to support his

conclusion that Plaintiff’s alleged sitting, standing and walking limitations are

inconsistent with the medical and other evidence of record. This principle is

underscored in some of the cases the Commissioner cited in her brief.

For example, the Commissioner is correct that in Ladd v. Astrue, the Court

held that an ALJ is not required to address every factor in 20 C.F.R. § 404.1529.30

However, the ALJ’s analysis of the claimant’s testimony in that case involved a

thorough explanation for the ALJ’s conclusion that the claimant’s statements about

his visual hallucinations and inability to tolerate crowds were not consistent with the

record. That explanation was reproduced as follows in the Court’s opinion:

I find the claimant only partially credible.... He testified that he last had

visual hallucinations in February; however, the last time he reported

30 Ladd v. Astrue, Civ No. 12-4553, 2014 WL 2011638, at *8 (E.D. Pa. May

16, 2014).

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visual hallucinations was in October 2009. Treatment records in

February 2010 noted no hallucinations and he reported that he has not

heard voices. The claimant testified that he does not like crowds and

mainly stays at home. However, the medical records show that in April

2010 he went to the movies twice and in March 2010 he reported that

it was getting easier to go to the store (Exhibit B–11F). He testified that

he never goes to family activities, but in December 2009 he reported

that he was able to enjoy himself at the family Christmas gathering

(Exhibit B–11F). He also testified to difficulty with concentration and

finishing tasks, but he has not reported any problems following a story

line when going to the movies and he plays video games with no

reported problems (Exhibit B–11F).31

The ALJ in Ladd clearly explained that the claimant’s statements were not consistent

with his activities or with statements he made to physicians. Unlike the ALJ in Ladd,

the ALJ in this case concluded that the medical evidence did not support “a greater

degree of limitation” than was set out in the RFC assessment, but did not explain

why. The type of explanation provided in Ladd is absent from this decision.

Under SSR 16-3p the ALJ is obligated to “consider other evidence to

evaluate” the relevant factors and “discuss the factors pertinent to the evidence of

record.”32 It also requires that the ALJ explain how his evaluation of Plaintiff’s

symptoms led to his conclusion.33 The discussion need not be comprehensive, and

“in most cases a sentence or short paragraph would probably suffice.”34 The

31 Id. at 7.

32 SSR 16-3p, 2017 WL 5180304, at *8.

33 Id.

34 Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981).

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explanation provided in this case is limited to a short summary of objective evidence

and the conclusory statement that the “record does not establish that this or other

impairments limit standing and walking more than what is noted in the above

residual functional capacity.” It falls short of what is required under SSR 16-3p, and

is not enough for this Court to conduct meaningful review of the ALJ’s findings.

Accordingly, we are compelled to remand this matter for further proceedings.

C. EVALUATION OF STOMACH PAIN & ABILITY TO MAINTAIN

ATTENDANCE

At step one of the sequential evaluation process, the ALJ concluded that

Plaintiff’s resumption of work from January 2019 through November 2019 did not

qualify as an unsuccessful work attempt. (Admin. Tr. 17; Doc. 10-2, p. 18). In the

RFC section of the decision, the ALJ wrote:

As noted above, she returned to work in January 2019 and earned

$36,000 in 2019. She testified that she took time off during this time

frame and the record supports her testimony that she had a tube placed

in her stomach. This occurred in March 2019 and she was off work for

this care. She subsequently developed a site infection in this area and

needed some time off work for this (Exhibits 26F and 30F). However,

she does not allege nor does the record support a 30 day break in work

between January 2019 and her last day of work in November 2019.

(Admin. Tr. 21; Doc. 10-2, p. 22) (emphasis added).

Plaintiff alleges that, due to her stomach pain, she would not be able to

maintain regular attendance within customary tolerances. Plaintiff brought this

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limitation to the ALJ’s attention as one of the primary limitations impacting her

ability to work. Plaintiff also testified that in November 2019 she missed

approximately three days of work over a period of two weeks due to stomach pain.

(Admin. Tr. 50; Doc. 10-2, p. 51). If she continued to be absent at that rate, she

would miss six days per month. The VE testified that this level of absenteeism

exceeds the threshold of what all employers would tolerate. (Admin. Tr. 65; Doc.

10-2, p. 64) (testifying that three or more days of unscheduled absences or late

arrivals per month would not be tolerated in competitive employment).

Plaintiff also asserts that the medical evidence of record demonstrates she was

admitted to the hospital on numerous occasions. She asserts that these hospital

admissions were not evaluated in the context of the attendance limitation alleged.35

35 Plaintiff reports she was hospitalized: August 21, 2018 through August 25,

2018 (four day admission for gastritis), (Admin. Tr. 928; Doc. 11, p. 391);

September 4, 2018 through September 7, 2018 (three day admission for abdominal

pain, was diagnosed with acute hepatitis), (Admin. Tr. 952; Doc. 11, p. 415);

October 2, 3018 through October 8, 2018 (six day admission for sepsis and

abdominal pain), (Admin. Tr. 1542; Doc. 11-2, p. 67); February 27, 2019

(emergency room visit due to abdominal pain), (Admin. Tr. 1238; Doc. 11, p. 701);

March 9, 2019 through March 17, 2019 (seven day admission for biliary obstruction

and abdominal pain), (Admin. Tr. 1214; Doc. 11, p. 677); June 9, 2019 through June

10, 2019 (one day admission with abdominal pain) (Admin. Tr. 1144; Doc. 11, p.

607); December 27, 2019 through January 1, 2020 (five day admission for

abdominal pain), (Admin. Tr. 1580; Doc. 11-2, p. 105); March 6, 2021 through

March 7, 2021 (one day admission due to abdominal pain and hypomagnesemia)

(Admin. Tr. 1617; Doc. 11-3, p. 12); and May 10, 2021 through May 14, 2021 (four

day admission for abdominal distention), (Admin. Tr. 1823; Doc. 11-4, p. 25).

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Based on these records, it appears Plaintiff spent 13 days in the hospital in 2018, 13

days in the hospital in 2019, 1 day in the hospital in 2020, and 4 days in the hospital

between January and May 2021.36

In response, the Commissioner argues that “[t]he ALJ recognized that Plaintiff

required some time off work during that period, but noted that the record did not

support a 30 day break in work.” (Doc. 15, p. 25) (citing Admin. Tr. 21; Doc. 10-2,

p. 22).

Plaintiff’s argument is persuasive. The ALJ’s evaluation of whether Plaintiff

was absent from work for less than thirty days does not adequately address the

alleged limitation of excessive absenteeism. Thus, the ALJ did not explain how he

concluded that no attendance limitation was present. Plaintiff’s hospital records

suggest that she had at least significant, if not work preclusive, difficulty maintaining

regular attendance due to her poor health. Given that this limitation was urged by

36 The record was held open to provide Plaintiff with an opportunity to submit

her attendance records from Walmart to further develop this issue. (Admin. Tr. 40-

41; Doc. 10-2, p. 41-42). Although Plaintiff’s counsel made multiple requests for the

records in the month following the administrative hearing, Walmart’s legal

department never responded. (Admin. Tr. 537; Doc. 10-6, p. 249). Plaintiff requested

that the record be closed and that a decision be made on the existing file. Id.

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Plaintiff and acknowledged by the ALJ during the hearing, the ALJ’s failure to

address it in the decision undermines his conclusion and requires remand.

V. CONCLUSION

Accordingly, 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 Angela S.’s favor.

(4) An appropriate order will be issued.

Date: September 27, 2023 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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