# Stahurski v. Commissioner of Social Security

> District Court, M.D. Pennsylvania · June 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10667494

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** June 27, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH STAHURSKI, : Civil No. 3:22-CV-1807
:
Plaintiff, :
:
v. : (Magistrate Judge Carlson)
:
MARTIN O’MALLEY,1 :
Commissioner of Social Security :
:
Defendant. :

MEMORANDUM OPINION

I. Introduction
For Administrative Law Judges (ALJs), Social Security disability
determinations frequently entail an informed assessment of competing medical
opinions coupled with an evaluation of a claimant's subjective complaints. Once the
ALJ completes this task, on appeal it is the duty and responsibility of the district
court to review these ALJ findings, judging the findings against a deferential
standard of review which simply asks whether the ALJ's decision is supported by
substantial evidence in the record, see 42 U.S.C. § 405(g); Johnson v. Comm'r of

1 Martin O’Malley became the Commissioner of Social Security on
December 20, 2023. Accordingly, pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure and 42 U.S.C. § 405(g), Martin O’Malley is substituted for Kilolo
Kijakazi as the defendant in this suit.

1
Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp.2d 533,
536 (M.D. Pa. 2012), a quantum of proof which “does not mean a large or

considerable amount of evidence, but rather such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487
U.S. 552, 565 (1988). This informed assessment by the ALJ, however, must be

accompanied by “a clear and satisfactory explication of the basis on which it rests.”
Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Thus, the Social Security Act and
case law construing the Act place a duty of articulation upon ALJ's which is essential
to informed evaluation of disability determinations on appeal. It is also well settled

that, while an ALJ may choose which medical opinions to credit, an ALJ may not
substitute his own lay opinion for that of a medical expert. See Ferguson v.
Schweiker, 765 F.2d 31, 37 (3d Cir.1985) (“An ALJ is not free to set his own

expertise against that of a physician who presents competent evidence” by
independently “reviewing and interpreting” the medical evidence.); Morales v.
Apfel, 225 F.3d 310, 317–18 (3d Cir. 2000). See also Arnone v. Saul, No. 3:20-CV-
00750, 2021 WL 963482, at *5 (M.D. Pa. Mar. 15, 2021); McKay v. Colvin, No.

3:14-CV-2020, 2015 WL 5124119, at *17 (M.D. Pa. Aug. 13, 2015).

2
We are reminded of these guiding tenets of Social Security practice as we turn
to this case. In the instant case, an ALJ denied Joseph Stahurski’s disability

application, which alleged disability beginning on July 25, 2020, in part due to
degenerative disc disease causing chronic lower back pain. However, in reaching
this result the ALJ did not include a provision in the residual functional capacity

(RFC) to account for Stahurski’s use of an assistive device to ambulate because the
ALJ found his use of a cane was not medically necessary. The ALJ reached this
conclusion based upon MRI and EMG results and the results of a consultative
examination showing no significant deficits in strength or sensation in Stahurski’s

lower extremities. But the ALJ’s interpretation of the medical evidence stands in
stark contrast to the countervailing evidence regarding Stahurski’s use of a cane,
including documentation in his medical records of a cane being prescribed and fitted,

the opinion of the consultative examiner that Stahurski’s cane was medically
necessary, and Stahurski’s own testimony that he needed a cane to ambulate in the
community due to his pain.
In our view, given the evidence which reveals that Stahurski was prescribed a

cane, was referred for a cane and routinely used that cane, more is needed here to
justify the ALJ's decision which fashioned an RFC for Stahurski that wholly
discounted his use of a cane and instead required him “to perform light work as

3
defined in 20 CFR 404.1567(b) . . . and could perform a total of 4 hours of standing
and/or walking and 6 hours of sitting in an eight-hour workday. . . .” (Tr. 20). Indeed,

in similar circumstances we have held that when an ALJ crafts an RFC for a claimant
that includes significant mobility requirements, without accounting for their need for
an assistive device, a remand is warranted. See Jordan v. Kijakazi, No. 1:21-CV-

01975, 2023 WL 2616099 (M.D. Pa. Mar. 23, 2023); Dieter v. Saul, No. 1:19-CV-
1081, 2020 WL 2839087 (M.D. Pa. June 1, 2020). Accordingly, for the reasons set
forth below, we will remand this case for further consideration by the Commissioner.
II. Statement of Facts and of the Case

Because we have determined that a remand is necessary due to the failure of
the ALJ to account for Stahurski’s use of an assistive device in the RFC, we will
focus upon this issue when assessing the record.

On April 13, 2021, Stahurski filed a claim for disability and disability
insurance benefits (DIB) under Title II of the Social Security Act, alleging an onset
of disability beginning on July 25, 2020.2 (Tr. 15). Stahurski was 48 years old on the
alleged date of the onset of his disability, which was defined as a younger individual

2 Stahurski previously applied for disability insurance benefits alleging disability
beginning March 31, 2017. His claim was denied by an ALJ after a hearing on July
24, 2020. (Tr. 169-89).

4
under the regulations, but subsequently changed age category to closely approaching
advanced age. (Tr. 27). He has a high school education and previously worked as an

electronics technician. (Tr. 27-28).
On his application for disability benefits, Stahurski alleged he was disabled
due to migraines, cervical radiculopathy, high blood pressure, hypercholesterolemia,

spondylosis, lumbar radiculopathy, degeneration on the lumbar intervertebral disc,
low back pain, and tinnitus in both ears. (Tr. 191). As the ALJ highlighted, the
treatment of Stahurski’s lower back pain was marked by relatively normal physical
examination findings, but continued reports of chronic pain. As the ALJ explained:

From the time of the alleged onset date and throughout the relevant
period, the claimant has continued to receive chiropractic treatment and
acupuncture for the lumbar spine (Exhibits C1F, C6F, Pgs. 77-96, C9F,
Pgs. 2-8 and 29-75 and C10F, Pgs. 46 and 54). The record also shows
the claimant established treatment with a physiatrist on June 16, 2020.
These records show the claimant was recently given a steroid pack
medicine and wanted to continue with acupuncture or maybe get an
injection. The record then shows treatment with a right SI joint injection
on July 7, 2020 (Exhibits C2F, Pg. 94 and C10F, Pgs. 331 and 340-
341). Treatment records from August 13, 2020 note the claimant
reported a pain level of four in the low back and right hip and that he
wanted to continue to chiropractic treatment and acupuncture due to
great relief with that treatment. These records also indicate the claimant
reported he takes Flexeril and Lidocaine but, when his back pain
increases in intensity, then he would like to take Tramadol once in a
while. On examination, the claimant had mild tenderness at the right
L4-5 paraspinal muscle and positive straight leg raise on the right but
motor strength in was full (5/5) in all muscle groups of the lower
extremities and the claimant’s gait was within normal limits (Exhibits

5
C2F, Pgs. 83-84 and C10F, Pgs. 314-315). In addition, records from
September 24, 2020 show the claimant reported neck pain and on
examination was found to have a slight reduction (+4/5) in strength the
upper extremities but with reflexes and sensation within normal limits
and negative Spurling’s test (Exhibit C10F, Pgs. 285-286). Records
from November 17, 2020 note the claimant requesting a single point
cane because he felt he needed one (Exhibit 2F, Pg. 55).

Subsequent records in 2020 show the claimant continued conservative
treatment for his symptoms (Exhibit C10F, Pg. 271). Records from
January 19, 2021 note the claimant requesting ongoing chiropractic
care (Exhibit C10F, Pg. 269). Clinical findings on February 8, 2021
continue to note tenderness over the SI joints right more than left and
note slight reductions in lower extremity strength (-4/5) but normal
sensation and reflexes. Similar to prior cervical findings, the was found
to have a slight reduction in strength (+4/5) in the upper extremities but
with reflexes and sensation within normal limits and negative
Spurling’s test (Exhibit C10F, Pgs. 244 and 245). Records from March
4, 2021 note the claimant again requesting a single point cane because
he felt he needed one (Exhibit 2F, Pg. 21). However, a medical note
from March 17, 2021 indicates that while the claimant had prior
herniation and was seen by neurosurgery in 2012, the subsequent MRI
showed almost complete reabsorption (80-90%) of the disc herniation
(Exhibits C2F, Pg. 10 and C10F, Pg. 217) [Emphasis Added].

Further, clinical findings from May 11, 2021 again indicate tenderness
over the SI joints, right more than left, slight reductions in lower
extremity strength (-4/5), normal sensation and reflexes in the lower
extremities, only slight reduction in strength (+4/5) in the upper
extremities, normal reflexes and sensation in the upper extremities and
negative Spurling’s test (Exhibit C3F, Pg. 20). Similar findings are also
noted in treatment records from July 15, 2021. (Exhibit C5F, Pgs. 13-
14).

(Tr. 22-23).

6
Despite the ALJ’s relatively benign characterization of Stahurski’s lower back
impairments, the record demonstrates that, throughout the relevant period, Stahurski

used an assistive device due to his lower back pain. At the disability hearing on May
16, 2022, Stahurski testified that he experiences continuous constant lower back pain
that, at times, causes him to be unable to walk at all without stanchion crutches. (Tr.

45). Most of the time he stated he has pain in his hips that radiates down his right
leg which affects the way he walks, sits, and sleeps. (Tr. 44-45). When asked about
his difficulty walking, he testified:
Q: Okay. So, with the difficulty walking, do you sometimes use an
assisted device?
A: Yes. A cane. Most of the time, I use a cane and that would depend
on my planning on how far I’m going to walk or if I have to go
somewhere where I have to walk, I use a cane.
Q: Okay.
A: And if I get really bad and I’m not steady or – I’ll use a stanchion
crutch. It’s a little more support on my right side.

(Tr. 45). A vocational expert also testified at the hearing and stated that the necessity
of a cane for ambulation would significantly reduce one’s ability to perform light
duty jobs in general. (Tr. 57). Stahurski’s August 2021 function report also states
that he was prescribed crutches and uses a cane every day. (Tr. 363). A previous
function report stated he uses his cane when having a bad back event or walking long
distances. (Tr. 325).

7
The medical records show that Stahurski was fitted, issued, and instructed in
the use of forearm crutches in November 2017 and participated in gait training and

stair negotiation with the assistive device for low back pain. (Tr. 67). During the
relevant period, Stahurski was treating his back pain with physical therapy,
acupuncture, chiropractic treatments, and medications. A physical therapy note from

November 17, 2020, stated that his back pain was only 4/10 but that it can increase
up to 10/10 when he tries to ambulate. He asked for a single point cane for
community ambulation. (Tr. 490). A prosthetic consult was entered for a single point
cane in March 2021, after Stahurski reported to his physical therapist that he could

hardly ambulate in his home and when he tried to ambulate in the community,
especially going to medical appointments and stores, he felt he needed a single point
cane. (Tr. 455-56). On June 1, 2021, he was fitted with a single point cane by

physical therapist Susko and educated on its safe usage. (Tr. 666). By September
2021, after a procedure on his back, it was noted he was walking “better” and not
relying on his cane “as much.” (Tr. 1186). And in March 2022 and NSG clinic note
stated he was still experiencing right hip pain rated at 4/10. (Tr. 1130).

On June 3, 2021, Stahurski presented for a consultative examination with
Nurse Practitioner Tara Cywinski. NP Cywinski noted that he used a cane and, at
times, crutches as assistive devices and presented to the examination with a cane.

8
(Tr. 626). She noted that he uses a cane for ambulation because of right hip pain.
(Tr. 625). The examination revealed an antalgic gait favoring the right lower

extremity and that he was unable to walk on his heels and toes due to the gait
imbalance. (Tr. 627). NP Cywinski opined that Stahurski required the use of a cane
to ambulate, that he could only ambulate 50-75 feet without the use of a cane, and

that the use of a cane was medically necessary. (Tr. 631).
Following a hearing on Stahurski’s disability application, the ALJ issued a
decision denying Stahurski’s claim on May 26, 2022. (Tr. 12-33). In that decision,
the ALJ first concluded that Stahurski had not engaged in substantial gainful activity

since his alleged onset date of disability, July 25, 2020, through his date last insured
of December 31, 2021. (Tr. 18). At Step 2 of the sequential analysis that governs
Social Security cases, the ALJ found that Stahurski had the following severe

impairments: degenerative disc disease of the cervical spine with radiculopathy and
history of anterior cervical discectomy and fusion, degenerative disc disease of the
lumbar spine with radiculopathy and chronic tension headaches with migrainosus
component. (Id.) At Step 3, the ALJ determined that Stahurski’s impairments or

combination of impairments did not meet or medically equal one of the listed
impairments. (Tr. 19).

9
Between Steps 3 and 4, the ALJ concluded that Stahurski retained the
following residual functional capacity:

After careful consideration of the entire record, the undersigned finds
that, through the date last insured, the claimant had the residual
functional capacity to perform light work as defined in 20 CFR
404.1567(b) in that the claimant could lift and carry twenty pounds
occasionally and ten pounds frequently, and could perform a total of 4
hours of standing and/or walking and 6 hours of sitting in an eight-hour
workday. The claimant can occasionally climb ramps and stairs but
never climb ladders, ropes or scaffolds or crawl. The claimant can
occasionally balance and stoop, and can frequently kneel and crouch.
The claimant must avoid concentrated exposure to extreme cold,
vibration and hazards, such as unprotected heights and dangerous
moving machinery.

(Tr. 20). This RFC – which called for Stahurski to perform light work as defined by
20 CFR 404.1567(b) and occasionally balance and stoop and frequently kneel and
crouch – made no provision whatsoever for Stahurski’s medical referral for a cane.
Indeed, in March 2021 a prosthetic consult was entered for a single point cane and
Stahurski was fitted for a cane in July 2021. (Tr. 456, 666). Also, according to the
record, Stahurski was prescribed forearm crutches in 2017 prior to his alleged onset
date of disability. (Tr. 67).
The ALJ justified this decision to completely discount Stahurski’s
documented use of a cane in the RFC by asserting that:
There was no limitation for the use of a cane, as the record clearly
shows the claimant is using a cane at times because he feels he needs

10
it, but EMG testing was normal, MRI testing showed reabsorption of
disk material and updated testing did not show any abnormalities that
would support a need for cane use, as did the examination findings from
the treatment records and consultative examination, which show no
significant deficits in strength, sensation or reflexes.

(Tr. 25).

On this score, the ALJ found the opinion of consultative examiner CRNP
Cywinski partially persuasive, but found her opinion regarding Stahurski’s cane use
not persuasive, explaining:
[T]he remainder of the limitations, including cane use, were not
persuasive because they are not well supported by objective findings
from the examination, including full strength in the left lower extremity
and bilateral upper extremities, intact reflexes and sensation in the
upper and lower extremities, otherwise normal musculoskeletal range
of motion and full grip strength and intact hand and finger dexterity.
This degree of limitation is also not supported by updated diagnostic
testing that showed relatively well-maintained height of the vertebral
bodies and intervertebral disc spaces, intact pedicles throughout and
only a grade one spondylolisthesis of L5 on S1 (Exhibit 4F). In
addition, this degree of limitation is not consistent with clinical findings
from the treatment records, which note a gait within normal limits, only
a slight reduction (+4/5) in strength in the upper extremities with
reflexes and sensation within normal limits (Exhibits C2F, Pgs.
84C10F, Pgs. 285-286). These limitations are also inconsistent with
references in the record to the claimant requesting a cane because he
felt he needed one and no direct statement from a provider that it is
medically necessary (Exhibit 2F, Pgs. 21 and 55). Further, these
portions of the opinion are not consistent with the level of treatment,
which is conservative in nature with no need for updated testing or
referral to an orthopedic or neurosurgeon for treatment and not
consistent with the most recent MRI interpretation indicating a
reabsorption of disc material (Exhibits C2F, Pg. 10 and C10F, Pg. 217).

11
Lastly, this opinion was from a one-time examination and the examiner
did not review all the medical evidence of record available at that time.

(Tr. 24-25).
The ALJ also considered the opinions of State agency consultants Dr.
Bermudez and Dr. Lombard and found their opinions to be persuasive. Notably,
neither State agency physician specifically opined on Stahurski’s cane use, although
Dr. Bermudez acknowledged treatment records from 2021 stating he needed an

assistive device to ambulate and gait imbalance and Dr. Lombard also noted his
antalgic gait. (Tr. 201-02, 211-12). Thus, the ALJ’s decision to discount Stahurski’s
use of a cane was not based upon any medical opinion stating it was not medically
necessary and was made in the face of records indicating that the use of a cane was

medically necessary.
After explaining his reasoning behind the RFC, the ALJ then found that
transferability of job skills was not material to the determination of disability

because the Medical-Vocational Rules supported a finding that Stahurski was “not
disabled” whether or not he had transferable job skills. (Tr. 28). The ALJ then
concluded that there were jobs that existed in the significant numbers in the national
economy that Stahurski could have performed through the date last insured and thus

12
Stahurski was not under a disability at any time during the disability period. (Tr. 28-
29).

This appeal followed. (Doc. 1). On appeal, Stahurski argues that the ALJ
failed to account for the total limiting effects of his severe impairments by omitting
his mobility devices and off-task limitations related to migraines and back pain from

the RFC. We find that, with regard to the ALJ’s rejection of Stahurski’s mobility
devices in the RFC, the ALJ’s decision was not supported by substantial evidence.
Accordingly, we will remand this case for further consideration and evaluation of
the medical evidence as it pertains to this issue.

III. Discussion
A. Substantial Evidence Review – the Role of this Court

When reviewing the Commissioner’s final decision denying a claimant’s
application for benefits, this Court’s review is limited to the question of whether the
findings of the final decision-maker are supported by substantial evidence in the
record. See 42 U.S.C. §405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200
(3d Cir. 2008); Ficca v. Astrue, 901 F. Supp.2d 533, 536 (M.D. Pa. 2012).
Substantial evidence “does not mean a large or considerable amount of evidence, but

rather such relevant evidence as a reasonable mind might accept as adequate to

13
support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial
evidence is less than a preponderance of the evidence but more than a mere scintilla.

Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not
substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a
conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.

1993). But in an adequately developed factual record, substantial evidence may be
“something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ’s decision]
from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,

383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is
supported by substantial evidence the court must scrutinize the record as a whole.”
Leslie v. Barnhart, 304 F. Supp.2d 623, 627 (M.D. Pa. 2003).

The Supreme Court has recently underscored for us the limited scope of our
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,

14
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).
Biestek, 139 S. Ct. at 1154.
The question before this Court, therefore, is not whether the claimant is
disabled, but rather whether the Commissioner’s finding that he is not disabled is
supported by substantial evidence and was reached based upon a correct application
of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205,
at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s errors of law denote
a lack of substantial evidence”) (alterations omitted); Burton v. Schweiker, 512 F.
Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary’s determination as to the status of
a claim requires the correct application of the law to the facts.”); see also Wright v.
Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal
matters is plenary); Ficca, 901 F. Supp.2d at 536 (“[T]he court has plenary review

of all legal issues . . . .”).
Several fundamental legal propositions which flow from this deferential
standard of review. First, when conducting this review “we are mindful that we must

15
not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777
F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d

Cir. 2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence.
Rather our task is to simply determine whether substantial evidence supported the
ALJ’s findings. However, we must also ascertain whether the ALJ’s decision meets

the burden of articulation demanded by the courts to enable informed judicial
review. Simply put, “this Court requires the ALJ to set forth the reasons for his
decision.” Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000).
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
meaningful 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.
Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

Thus, in practice ours is a twofold task. We must evaluate the substance of the
ALJ’s decision under a deferential standard of review, but we must also give that
decision careful scrutiny to ensure that the rationale for the ALJ’s actions is
sufficiently articulated to permit meaningful judicial review.

16
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ

To receive benefits under the Social Security Act by reason of disability, a
claimant must demonstrate an inability to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A); see also 20
C.F.R. §404.1505(a). To satisfy this requirement, a claimant must have a severe
physical or mental impairment that makes it impossible to do his or her previous
work or any other substantial gainful activity that exists in the national economy. 42

U.S.C. §423(d)(2)(A); 20 C.F.R. §404.1505(a). To receive benefits under Title II of
the Social Security Act, a claimant must show that he or she contributed to the
insurance program, is under retirement age, and became disabled prior to the date on

which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
In making this determination at the administrative level, the ALJ follows a
five-step sequential evaluation process. 20 C.F.R. §404.1520(a). 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

17
is able to do any other work, considering his or her age, education, work experience
and residual functional capacity (“RFC”). 20 C.F.R. §404.1520(a)(4).

Between Steps 3 and 4, the ALJ must also assess a claimant’s residual
functional capacity (RFC). RFC is defined as “that which an individual is still able
to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm’r

of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R.
§§404.1520(e), 404.1545(a)(1). In making this assessment, the ALJ considers all of
the claimant’s medically determinable impairments, including any non-severe
impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R.

§404.1545(a)(2).
There is an undeniable medical aspect to an RFC determination, since that
determination entails an assessment of what work the claimant can do given the

physical limitations that the claimant experiences. Yet, when considering the role
and necessity of medical opinion evidence in making this determination, courts have
followed several different paths. Some courts emphasize the importance of medical
opinion support for an RFC determination and have suggested that “[r]arely 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.”
Biller v. Acting Comm'r of Soc. Sec., 962 F. Supp. 2d 761, 778–79 (W.D. Pa. 2013)

18
(quoting Gormont v. Astrue, Civ. No. 11–2145, 2013 WL 791455 at *7 (M.D. Pa.
Mar. 4, 2013)). In other instances, it has been held that: “There is no legal

requirement that a physician have made the particular findings that an ALJ adopts
in the course of determining an RFC.” Titterington v. Barnhart, 174 F. App’x 6, 11
(3d Cir. 2006). Further, courts have held in cases where there is no evidence of any

credible medical opinion supporting a claimant’s allegations of disability that “the
proposition that an ALJ must always base his RFC on a medical opinion from a
physician is misguided.” Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D.
Pa. 2015).

These seemingly discordant legal propositions can be reconciled by
evaluation of the factual context of these decisions. Those cases which emphasize
the importance of medical opinion support for an RFC assessment typically arise in

the factual setting where a well-supported medical source has identified limitations
that would support a disability claim, but an ALJ has rejected the medical opinion
which supported a disability determination based upon a lay assessment of other
evidence. Biller, 962 F.Supp.2d at 778–79. In this setting, these cases simply restate

the commonplace idea that medical opinions are entitled to careful consideration
when making a disability determination, particularly when those opinions support a
finding of disability. In contrast, when an ALJ is relying upon other evidence, such

19
as contrasting clinical or opinion evidence or testimony regarding the claimant’s
activities of daily living, to fashion an RFC courts have adopted a more pragmatic

view and have sustained the ALJ’s exercise of independent judgment based upon all
of the facts and evidence. See Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir.
2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D. Pa. 2015). In either

event, once the ALJ has made this determination, our review of the ALJ's assessment
of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if
it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d
Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at

*5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar
v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun
v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12,

2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366
(M.D. Pa. Mar. 27, 2018).
At Steps 1 through 4, the claimant bears the initial burden of demonstrating
the existence of a medically determinable impairment that prevents him or her in

engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once this
burden has been met by the claimant, it shifts to the Commissioner at Step 5 to show
that jobs exist in significant number in the national economy that the claimant could

20
perform that are consistent with the claimant’s age, education, work experience and
RFC. 20 C.F.R. §404.1512(f); Mason, 994 F.2d at 1064.

The ALJ’s disability determination must also meet certain basic substantive
requisites. Most significant among these legal benchmarks is a requirement that the
ALJ adequately explain the legal and factual basis for this disability determination.

Thus, in order to facilitate review of the decision under the substantial evidence
standard, the ALJ's decision must be accompanied by “a clear and satisfactory
explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate

which evidence was accepted, which evidence was rejected, and the reasons for
rejecting certain evidence. Id. at 706-07. In addition, “[t]he ALJ must indicate in his
decision which evidence he has rejected and which he is relying on as the basis for

his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
C. Legal Benchmarks for the ALJ’s Assessment of Medical Opinion
Evidence
The plaintiff filed this disability application in June of 2019 after a paradigm
shift in the manner in which medical opinions were evaluated when assessing Social
Security claims. Prior to March 2017, ALJs were required to follow regulations

which defined medical opinions narrowly and created a hierarchy of medical source

21
opinions with treating sources at the apex of this hierarchy. However, in March of
2017, the Commissioner’s regulations governing medical opinions changed in a

number of fundamental ways. The range of opinions that ALJs were enjoined to
consider were broadened substantially, and the approach to evaluating opinions was
changed from a hierarchical form of review to a more holistic analysis. As one court

as aptly observed:
The regulations regarding the evaluation of medical evidence have been
amended for claims filed after March 27, 2017, and several of the prior
Social Security Rulings, including SSR 96-2p, have been rescinded.
According to the new regulations, the Commissioner “will no longer
give any specific evidentiary weight to medical opinions; this includes
giving controlling weight to any medical opinion.” Revisions to Rules
Regarding the Evaluation of Medical Evidence (“Revisions to Rules”),
2017 WL 168819, 82 Fed. Reg. 5844, at 5867–68 (Jan. 18, 2017), see
20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner
must consider all medical opinions and “evaluate their persuasiveness”
based on the following five factors: supportability; consistency;
relationship with the claimant; specialization; and “other factors.” 20
C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c).

Although the new regulations eliminate the perceived hierarchy of
medical sources, deference to specific medical opinions, and assigning
“weight” to a medical opinion, the ALJ must still “articulate how [he
or she] considered the medical opinions” and “how persuasive [he or
she] find[s] all of the medical opinions.” Id. at §§ 404.1520c(a) and
(b)(1), 416.920c(a) and (b)(1). The two “most important factors for
determining the persuasiveness of medical opinions are consistency and
supportability,” which are the “same factors” that formed the
foundation of the treating source rule. Revisions to Rules, 82 Fed. Reg.
5844-01 at 5853.

22
An ALJ is specifically required to “explain how [he or she] considered
the supportability and consistency factors” for a medical opinion. 20
C.F.R. §§ 404.1520c (b)(2), 416.920c(b)(2). With respect to
“supportability,” the new regulations provide that “[t]he more relevant
the objective medical evidence and supporting explanations presented
by a medical source are to support his or her medical opinion(s) or prior
administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” Id. at §§
404.1520c(c)(1), 416.920c(c)(1). The regulations provide that with
respect to “consistency,” “[t]he more consistent a medical opinion(s) or
prior administrative medical finding(s) is with the evidence from other
medical sources and nonmedical sources in the claim, the more
persuasive the medical opinion(s) or prior administrative medical
finding(s) will be.” Id. at §§ 404.1520c(c)(2), 416.920c(c)(2).

Under the new regulations an ALJ must consider, but need not
explicitly discuss, the three remaining factors in determining the
persuasiveness of a medical source's opinion. Id. at §§ 404.1520c(b)(2),
416.920c(b)(2). However, where the ALJ has found two or more
medical opinions to be equally well supported and consistent with the
record, but not exactly the same, the ALJ must articulate how he or she
considered those factors contained in paragraphs (c)(3) through (c)(5).
Id. at §§ 404.1520c(b)(3), 416.920c(b)(3).

Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at
*5 (N.D.N.Y. Oct. 1, 2020).
Oftentimes, as in this case, an ALJ must evaluate various medical opinions.
Judicial review of this aspect of ALJ decision-making is still guided by several
settled legal tenets. First, when presented with a disputed factual record, it is well-
established that “[t]he ALJ – not treating or examining physicians or State agency
consultants – must make the ultimate disability and RFC determinations.” Chandler

23
v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). Thus, when evaluating
medical opinions “the ALJ may choose whom to credit but ‘cannot reject evidence

for no reason or for the wrong reason.’” Morales v. Apfel, 225 F.3d 310, 317 (3d
Cir. 2000) (quoting Mason, 994 F.2d at 1066). Therefore, provided that the decision
is accompanied by an adequate, articulated rationale, it is the province and the duty

of the ALJ to choose which medical opinions and evidence deserve greater weight.
Further, in making this assessment of medical evidence:
An ALJ is [also] entitled generally to credit parts of an opinion without
crediting the entire opinion. See Thackara v. Colvin, No. 1:14–CV–
00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015);
Turner v. Colvin, 964 F. Supp. 2d 21, 29 (D.D.C. 2013) (agreeing that
“SSR 96–2p does not prohibit the ALJ from crediting some parts of a
treating source's opinion and rejecting other portions”); Connors v.
Astrue, No. 10–CV–197–PB, 2011 WL 2359055, at *9 (D.N.H. June
10, 2011). It follows that an ALJ can give partial credit to all medical
opinions and can formulate an RFC based on different parts from the
different medical opinions. See e.g., Thackara v. Colvin, No. 1:14–CV–
00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015).
Durden v. Colvin, 191 F.Supp.3d 429, 455 (M.D. Pa. 2016). Finally, where there is
no evidence of any credible medical opinion supporting a claimant’s allegations of
disability “the proposition that an ALJ must always base his RFC on a medical
opinion from a physician is misguided.” Cummings, 129 F.Supp.3d at 214–15.
These principles apply with particular force to analysis of a claimant’s need
to use a cane where we have held that:

24
[I]f the claimant makes this threshold showing of medical necessity,
then it is incumbent upon the ALJ to directly “address the evidence
concerning Plaintiff's use of” the assistive device. Steward v. Comm'r
of Soc. Sec., No. CIV.A 08-1741, 2009 WL 1783533, at *5 (W.D. Pa.
June 23, 2009). Moreover, the failure to do so may require a remand.
Id. Likewise, when the evidence indicates that the use of a cane is
medically required and a vocational expert testifies that the plaintiff's
use of an assistive device would render her unable to work, it is error
for the ALJ to fail to set forth the reasons for rejecting this expert
testimony, and the case should be remanded. Altomare v. Barnhart, 394
F. Supp. 2d 678, 682 (E.D. Pa. 2005). In short, where substantial
evidence indicates that there is a medical need for a claimant to use a
cane or assistive device, and a vocational expert testified that such use
significantly erodes the employment base for a claimant, the failure to
adequately address these issues constitutes a failure of articulation by
the ALJ warranting a remand. See e.g., Graver v. Colvin, No.
3:13CV1811, 2014 WL 1746976, at *5 (M.D. Pa. May 1, 2014); Butler
v. Astrue, No. CIV.A. 11-376, 2012 WL 1252758, at *7 (W.D. Pa. Apr.
13, 2012).

Jordan v. Kijakazi, No. 1:21-CV-01975, 2023 WL 2616099, at *8 (M.D. Pa. Mar.
23, 2023).
It is against this backdrop that we evaluate the decision of the ALJ in this case.
E. This Case Will Be Remanded for Further Review.
On appeal, the plaintiff challenges the ALJ’s RFC determination, arguing that
it was underinclusive and failed to account for the total limiting effects of his severe
impairments. Specifically, the plaintiff alleges, among other arguments, that it was
error for the ALJ to omit his need for mobility devices from the RFC despite medical

25
evidence, including a consultative examiner opinion, demonstrating his use of a cane
was medically necessary.

We agree.
Case law and Social Security regulations both recognize that a claimant's need
to use an assistive device to ambulate can dramatically and adversely affect the

ability to perform work on a sustained basis. Accordingly, in certain instances, the
use of a cane to ambulate can be outcome determinative in a Social Security appeal.
At the outset, in order to rely upon evidence regarding the use of a cane to sustain a
disability claim, the assistive device must be medically necessary. On this score:

Social Security regulations provide that an ALJ will not accommodate
the use of a cane unless the claimant first provides “medical
documentation establishing the need for a hand-held assistive device to
aid in walking or standing, and describing the circumstances for which
it is needed[.]” SSR 96–9p. Absent such documentation, an ALJ need
not accommodate the use of a cane in a residual functional capacity
assessment, even if the claimant was prescribed a cane by a doctor.

Williams v. Colvin, No. 3:13-CV-2158, 2014 WL 4918469, at *10 (M.D. Pa. Sept.
30, 2014) (citing Howze v. Barnhart, 53 Fed.Appx. 218, 222 (3d Cir. 2002)).
However, if the claimant makes this threshold showing of medical necessity,
then it is incumbent upon the ALJ to directly “address the evidence concerning
Plaintiff's use of” the assistive device. Steward v. Comm'r of Soc. Sec., No. CIV.A
08-1741, 2009 WL 1783533, at *5 (W.D. Pa. June 23, 2009). Moreover, the failure

26
to do so may require a remand. Id. In short, where substantial evidence indicates that
there is a medical need for a claimant to use a cane or assistive device, and a

vocational expert testified that such use significantly erodes the employment base
for a claimant, the failure to adequately address these issues constitutes a failure of
articulation by the ALJ warranting a remand. See e.g., Graver v. Colvin, No.

3:13CV1811, 2014 WL 1746976, at *5 (M.D. Pa. May 1, 2014); Butler v. Astrue,
No. CIV.A. 11-376, 2012 WL 1252758, at *7 (W.D. Pa. Apr. 13, 2012). These
principles which recognize the limiting effects of an assistive on employment apply
with particular force in a case such as this when an ALJ crafts an RFC for a claimant

that includes significant mobility requirements, without accounting for her need for
a cane. See Dieter, 2020 WL 2839087, at *9. In such instances a remand may be
necessary.

Here, the ALJ acknowledged that Stahurski “feels he needs” a cane for
ambulation but found that the objective medical evidence did not support such a
limitation. As the ALJ explained:
There was no limitation for the use of a cane, as the record clearly
shows the claimant is using a cane at times because he feels he needs
it, but EMG testing was normal, MRI testing showed reabsorption of
disk material and updated testing did not show any abnormalities that
would support a need for cane use, as did the examination findings from
the treatment records and consultative examination, which show no
significant deficits in strength, sensation or reflexes.

27
(Tr. 25). In our view, this does not adequately contemplate the evidence since the
ALJ simply dismissed this limitation as something the plaintiff “feels he needs” but
did not address the objective and opinion evidence tending to show it as a medical

necessity. Nor does this cursory discussion address the consultative expert’s finding
that Stahurski’s use of a cane was medically necessary. While the ALJ cites to
objectively unremarkable MRI and EMG test results and normal strength, sensation,

and reflexes upon examination to support this lay judgment of medical necessity, as
the plaintiff points out, his medical need for the use of a cane was not due to deficits
in strength, sensation, or reflexes, but rather due to chronic pain in his back and hip
that made it difficult for him to ambulate. His subjective complaints of pain are

supported by the medical records in which he consistently reports low back pain that
he was treating with joint injections, acupuncture, physical therapy, and medication.
Notes from his physiatrist Dr. Iqbal during the relevant period note lumbar

spondylosis and muscle spasms in the midback and neck and joint and leg pain. (Tr.
650-676).
Moreover, Stahurski’s need for a cane is documented in his medical records
and was confirmed by the consultative examiner and Stahurski’s own testimony. As

to the objective medical evidence, prior to the disability onset date, in 2017,

28
Stahurski was fitted, issued, and instructed in the use of forearm crutches for low
back pain. (Tr. 67). Stahurski testified that he will still sometimes use a stanchion

crutch if he needs more support on his right side. (Tr. 45). Closer to the onset date,
in November 2020, a physical medicine rehabilitation note stated that his back pain
“can increase up to 10/10 when he tries to ambulate,” and stated that he asked for a

single point cane for community ambulation. (Tr. 490). In March 2021, another
physical medicine rehabilitation note stated that, “he can hardly ambulate in his
home, but when he tries to ambulate in community, specially [sic] going to medical
appointments and going for stores to buy items of daily life and medical needs, he

feels the need of [single point cane].” (Tr. 456). On June 1, 2021, he was fitted with
a single point cane by physical therapist Susko and educated on its safe usage. (Tr.
666). Notes stated the reason for the equipment was other spondylosis, lumbar

region. (Id.) By September 2021, after a procedure on his back, it was noted he was
walking “better” and not relying on his cane “as much.” (Tr. 1186). And in March
2022 and NSG clinic note stated he was still experiencing right hip pain rated at
4/10. (Tr. 1130).

The opinion of consultative examiner NP Tara Cywinski also supports
Stahurski’s need for an assistive device. At his consultative examination on June 3,
2021, Stahurski presented with a cane, which he stated he used for ambulation due

29
to right hip pain. (Tr. 625-26). NP Cywinski noted an antalgic gait favoring his right
lower extremity and that he was unable to walk on his heels and toes due to gait

imbalance. (Tr. 627). In her opinion about Stahurski’s RFC, which she based off her
examination of the plaintiff, NP Cywinski opined that Stahurski required the use of
a cane to ambulate, could only ambulate 50-75 feet without a cane, and that the use

of a cane was medically necessary. (Tr. 631).
Stahurski himself also testified that he uses a cane “most of the time . . . if I
have to go somewhere I have to walk, I use a cane.” (Tr. 45). He also stated that “if
I get really bad and I’m not steady or – I’ll use a stanchion crutch. It’s a little more

support on my right side.” (Id.) An August 29, 2021, function report also noted that
he was prescribed a cane and crutches and used them every day. (Tr. 363).
Importantly, no medical expert opined that Stahurski did not require a cane to

ambulate. Although the State agency consulting physicians’ opinions supported the
stand/sit/walk limitations described by the ALJ in the RFC assessment and noted
that they believed the consultative examiner’s stand/walk limitations were
exaggerated and not adequately supported by the examination findings and

longitudinal evidence, the initial and reconsideration disability determinations both
noted that Stahurski used a cane for ambulation. (Tr. 202, 212). Dr. Bermudez
acknowledged treatment records from 2021 stating he needs an assistive device to

30
ambulate and noting a gait imbalance and Dr. Lombard also noted evidence of right
lower extremity weakness and antalgic gait in the record. (Tr. 211). Thus, although

these State agency consultants found the stand/sit/walk limitations of the
consultative examiner to be exaggerated they did not go so far as to state that his
cane use was not medically necessary.

Therefore, it was only the ALJ’s interpretation of the medical evidence that
supported his opinion that a cane was not medically necessary. This opinion is cast
against the weight of the medical evidence and opinions indicating that a cane was
medically necessary, not due to the deficits cited by the ALJ, but due to Stahurski’s

well-documented pain. Under the regulations, it is well settled that “[a]n ALJ's
decision to ignore medical evidence and substitute his or her own views for such an
opinion is erroneous. As a lay person, the ALJ simply is not qualified to interpret

raw medical data in functional terms.” § 25:66. An ALJ may not substitute his or her
own opinion for medical evidence, 3 Soc. Sec. Disab. Claims Prac. & Proc. § 25:66
(2nd ed.); see e.g. Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir.1985) (“An ALJ
is not free to set his own expertise against that of a physician who presents competent

evidence” by independently “reviewing and interpreting” the medical evidence.);
Morales v. Apfel, 225 F.3d 310, 317–18 (3d Cir. 2000). See also Arnone v. Saul,
No. 3:20-CV-00750, 2021 WL 963482, at *5 (M.D. Pa. Mar. 15, 2021); McKay v.

31
Colvin, No. 3:14-CV-2020, 2015 WL 5124119, at *17 (M.D. Pa. Aug. 13, 2015);
Niewierski v. Astrue, 737 F. Supp. 2d 459, 156 Soc. Sec. Rep. Serv. 620 (W.D. Pa.

2010).
Here, the ALJ erroneously supplanted his own interpretation of the evidence
to determine a cane was not medically necessary despite the evidence, including

medical opinions, objective medical records, and the plaintiff’s own testimony,
showing otherwise. This error in the ALJ’s reasoning prejudiced the plaintiff, since,
at the hearing, a vocational expert testified that the necessity of a cane for ambulation
would significantly reduce one’s ability to perform light duty jobs in general. (Tr.

57). Since we find no medical evidence supporting the ALJ’s view that Stahurski
merely used a cane because he “felt he needed one” this case will be remanded for
further review of this issue.

In our view, more is needed by way of an explanation. Since the ALJ’s burden
of articulation is not met in the instant case, this matter must be remanded for further
consideration by the Commissioner. Yet, while we reach this result, we note that
nothing in this Memorandum Opinion should be deemed as expressing a judgment

on what the ultimate outcome of any reassessment of this evidence should be. Rather,
the task should remain the duty and province of the ALJ on remand. Because we
have found a basis for remand on these grounds, we need not address the plaintiff’s

32
remaining arguments. To the extent that any other error occurred, it may be remedied
on remand.

IV. Conclusion
Accordingly, for the foregoing reasons, this case will be REMANDED for
further consideration.
An appropriate order follows.

S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

DATED: June 27, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667494. Public record. Not legal advice.