Galgoci v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JEROME FRANCIS GALGOCI, : CIVIL NO.: 1:23-cv-01530

:

Plaintiff, : (Magistrate Judge Schwab)

:

v. :

:

:

COMMISSIONER OF :

SOCIAL SECURITY, :

:

Defendant. :

MEMORANDUM OPINION

I. Introduction.

In this social security action, Plaintiff Jerome Francis Galgoci seeks judicial

review of the final decision of the Commissioner of Social Security

(“Commissioner”) denying his claim for disability insurance benefits under Title II

of the Social Security Act. We have jurisdiction under 42 U.S.C. § 405(g). For the

reasons set forth below, we will vacate the Commissioner’s decision and remand

the case to the Commissioner for further proceedings.

II. Background and Procedural History.

We refer to the transcript provided by the Commissioner. See docs. 10-1 to

10-7.1 On July 17, 2021, Galgoci protectively filed2 an application for disability

insurance benefits, alleging that he has been disabled since January 1, 2021.

Admin. Tr. at 182–90.3 He later filed an amended application alleging that he

became disabled on April 27, 2021. Id. at 191. After the Commissioner denied his

claim at the initial and reconsideration levels of administrative review, id. at 99–

103, 105–09, Galgoci requested an administrative hearing, id. at 110–11. In June

2022, Galgoci, who was represented by counsel, as well as a vocational expert

testified via telephone at a hearing before Administrative Law Judge Daniel Balutis

(the “ALJ”). Id. at 34–59. In July 2022, the ALJ denied Galgoci’s claim for

1 Because the facts of this case are well known to the parties, we do not

repeat them here in detail. Instead, we recite only those facts that bear on

Galgoci’s claims.

2 “Protective filing is a term for the first time an individual contacts the

Social Security Administration to file a claim for benefits.” Stitzel v. Berryhill, No.

3:16-CV-0391, 2017 WL 5559918, at *1 n.3 (M.D. Pa. Nov. 9, 2017). “A

protective filing date allows an individual to have an earlier application date than

the date the application is actually signed.” Id.

3 This is not the first application for disability benefits that Galgoci filed. See

Admin. Tr. at 60–78 (April 26, 2021 decision of Administrative Law Judge

Michelle Wolfe denying Galgoci’s claim for benefits submitted in 2020). We note

that Galgoci’s alleged onset date for the instant claim is April 27, 2021, the day

after the decision on his prior claim. Since Galgoci’s prior claim is not relevant to

the instant claim, we do not mention it further.

benefits. Id. at 12–33. In so doing, the ALJ concluded that Galgoci’s date last

insured4 was December 31, 2025, and his alleged onset date (as amended), i.e., the

date that he allegedly became disabled, was April 27, 2021. Id. at 15, 16. Galgoci

appealed the ALJ’s decision to the Appeals Council, which denied his request for

review. Id. at 1–6. This makes the ALJ’s decision the final decision of the

Commissioner subject to judicial review by this Court.

In September 2023, Galgoci, represented by counsel, began this action by

filing a complaint claiming that the Commissioner’s decision is not supported by

substantial evidence and is contrary to law. See Doc. 1 ¶8. He requests that the

court reverse the Commissioner’s decision or, in the alternative, remand the case

for further proceedings. Id. at 2 (Wherefore Clause).

The parties consented to proceed before a magistrate judge pursuant to 28

U.S.C. § 636(c), and the case was referred to the undersigned. Doc. 8. The

Commissioner then filed an answer and a certified transcript of the administrative

4 “Disability insurance benefits are paid to an individual if that individual is

disabled and ‘insured,’ that is, the individual has worked long enough and paid

social security taxes.” Jury v. Colvin, No. 3:12-CV-2002, 2014 WL 1028439, at *1

n.5 (M.D. Pa. Mar. 14, 2014) (citing 42 U.S.C. §§ 415(a), 416(i)(1)). “The last

date that an individual meets the requirements of being insured is commonly

referred to as the ‘date last insured.’” Id. (citing 42 U.S.C. § 416(i)(2)). Here, the

ALJ determined that Galgoci met the insured-status requirements through

December 31, 2025. Admin. Tr. at 16, 18.

proceedings. Docs. 9, 10. The parties filed briefs, see docs. 11, 13, 14, and this

matter is ripe for decision.

III. Legal Standards.

A. Substantial Evidence Review—the Role of This Court.

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, “the court has plenary review of all legal issues decided by

the Commissioner.” Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).

But the court’s review of the Commissioner’s factual findings is limited to whether

substantial evidence supports those findings. See 42 U.S.C. § 405(g); Biestek v.

Berryhill, 587 U.S. 97, 99 (2019). “[T]he threshold for such evidentiary

sufficiency is not high.” Biestek, 587 U.S. at 103. Substantial evidence “means—

and means only—‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. of New York v.

N.L.R.B., 305 U.S. 197, 229 (1938)).

Substantial evidence “is less than a preponderance of the evidence but more

than a mere scintilla.” Jesurum v. Sec’y of U.S. Dep’t of Health & Human Servs.,

48 F.3d 114, 117 (3d Cir. 1995). 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] finding

from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,

383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is

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

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

The question before this court, therefore, is not whether Galgoci is disabled,

but whether substantial evidence supports the Commissioner’s finding that he is

not disabled and whether the Commissioner correctly applied the relevant law.

B. Initial Burdens of Proof, Persuasion, and Articulation.

To receive benefits under Title II of the Social Security Act, 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 work that exists in the national economy. 42 U.S.C.

§ 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Further, to receive disability insurance

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).

The ALJ follows a five-step sequential-evaluation process to determine

whether a claimant is disabled. 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 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)(i)–(v).

The ALJ must also assess a claimant’s RFC at step four. Hess v. Comm’r of

Soc. Sec., 931 F.3d 198, 198 n.2 (3d Cir. 2019). The RFC is ‘“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)

(quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)); see also 20

C.F.R. § 404.1545(a)(1). In making this assessment, the ALJ considers all the

claimant’s medically determinable impairments, including any non-severe

impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R.

§ 404.1545(a)(2).

“The claimant bears the burden of proof at steps one through four” of the

sequential-evaluation process. Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d

Cir. 2010). But at step five, “the burden of production shifts to the Commissioner,

who must . . . show there are other jobs existing in significant numbers in the

national economy which the claimant can perform, consistent with her medical

impairments, age, education, past work experience, and residual functional

capacity.” Fargnoli v. Massanari, 247 F.3d 34, 39 (3d Cir. 2001).

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significantly, the ALJ must provide “a clear and satisfactory

explication of the basis on which” his or her decision rests. Cotter v. Harris, 642

F.2d 700, 704 (3d Cir. 1981). “The 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. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). The

“ALJ may not reject pertinent or probative evidence without explanation.” Johnson

v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, ‘“the

reviewing court cannot tell if significant probative evidence was not credited or

simply ignored.’” Burnett, 220 F.3d at 121 (quoting Cotter, 642 F.2d at 705).

IV. The ALJ’s Decision.

On July 8, 2022, the ALJ denied Galgoci’s claim for benefits. Admin. Tr. at

12–33. He proceeded through the fourth step of the five-step sequential-evaluation

process.

A. Step One.

At step one of the sequential-evaluation process, the ALJ found that Galgoci

had not engaged in substantial gainful activity since the alleged onset date. Id. at

18.

B. Step Two.

At step two of the sequential-evaluation process, the ALJ found that Galgoci

had the following severe impairments: spinal stenosis with neuropathy and obesity.

Id. at 18. He also found that although Galgoci had a history of cardiac

catheterization, benign hypertension, obstructive sleep apnea, gout, and diabetes

mellitus, those impairments were not severe. Id.

C. Step Three.

At step three of the sequential-evaluation process, the ALJ found that

Galgoci did not have an impairment or combination of impairments that met or

medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix

1. Id. at 544. Specifically, that ALJ considered Listings 1.15 and 1.16 with respect

to Galgoci spinal’s issues. Id. at 19–20. The ALJ also considered SSR 19-2p with

respect to Galgoci’s obesity.

D. The RFC.

The ALJ then determined that Galgoci had the RFC to do sedentary work5

with some limitations. Id. at 22–27. He concluded that Galgoci, “who uses a single

point cane for ambulation, is able to carry objects in his non-cane using hand[.]”

Id. at 22. But he determined that Galgoci can only occasionally climb ramps and

stairs, and can only occasionally balance, stoop, kneel, crouch, and crawl. Id. And,

the ALJ determined, that Galgoci can never climb ladders, ropes, or scaffolds, and

he “must never push/pull or operate foot controls with the left lower extremity due

to foot drop.” Id. The ALJ further concluded, however, that Galgoci could be

5 See 20 C.F.R. § 404.1567(a) (“Sedentary work involves lifting no more

than 10 pounds at a time and occasionally lifting or carrying articles like docket

files, ledgers, and small tools. Although a sedentary job is defined as one which

involves sitting, a certain amount of walking and standing is often necessary in

carrying out job duties. Jobs are sedentary if walking and standing are required

occasionally and other sedentary criteria are met.”). ‘“Occasionally’ means

occurring from very little up to one-third of the time. Since being on one’s feet is

required ‘occasionally’ at the sedentary level of exertion, periods of standing or

walking should generally total no more than about 2 hours of an 8-hour workday,

and sitting should generally total approximately 6 hours of an 8-hour workday.”

SSR 83-10, 1983 WL 31251, at *5 (1983).

exposed to extreme cold and vibrations frequently, and he can work at unprotected

heights and in proximity to moving mechanical parts frequently. Id.

In making this RFC assessment, the ALJ reviewed Galgoci’s assertions and

testimony:

The claimant indicated in his application for benefits that he is

unable to work due to spinal stenosis, foot drop, sleep apnea,

lower extremity pain radiation, and obesity. Because of these

conditions, the claimant incurs limitation in his ability to lift,

squat, bend, stand, walk, kneel, stair climb, complete tasks, and

get along with others. The 6’0” tall claimant weighs about 350

pounds and is right handed. He maintains a driver’s license

without restriction and he is able to drive an automobile. The

claimant limits his driving due to leg weakness and an inability

to react quickly (thirty to forty miles is the distance limit that he

could drive). His girlfriend completes the shopping (he later

acknowledged that he shopped about “a couple of months ago”

but that he was required to lean on the cart and to take breaks).

The claimant’s left lower leg and foot hurt him daily, most

typically by the end of the day, if he engages in increased

activity. He rates his current pain level as a 5 or 6 of 10. This

is the claimant’s pain level with medication, and if he did not

take this medication, his pain level would increase to a 7. His

medications cause him to incur no side effects. He walks with a

cane and he is limited to walking for 50 feet without resting.

Poor balance also limits the claimant. Standing is limited to 10

or 15 minutes before he loses his balance and must rest (due to

leg weakness). If he sits for longer periods, he must switch

positions. Carrying objects greater than ten or 20 pounds would

cause the claimant to lose his balance. His hands are not

affected by his conditions and he is able to pick up objects from

the floor, if he is able to lean on something to maintain his

balance. Stooping and squatting is beyond the claimant’s

capacity. He cannot climb a flight of stairs without difficulty

and he struggles to do so at home. The claimant is able to

shower and he does so daily. Dressing is difficult for the

claimant, i.e. removing his socks and shoes is a problem, at

times. He is able to perform household chores from a seated

position. The claimant does not clean or complete yardwork.

He resides with his girlfriend and her 13-year-old daughter. It

is difficult for the claimant to sleep, but he does not typically

take naps. He does not know why he struggles to sleep. In the

winter (the cold weather), causes his body to stiffen. He has

fallen and he needs help carrying objects[.] During a typical

day, he does very little. The claimant generally watches

television and listens to music. His inability to perform tasks

frustrates him. After he was previously denied SSA benefits,

he tried to find work (this effort was unsuccessful because no

employer would accommodate his physical limitations).

Id. at 23.6 The ALJ concluded that Galgoci’s “medically determinable

impairments could reasonably be expected to cause the alleged symptoms;

however, [Galgoci’s] statements concerning the intensity, persistence and limiting

effects of these symptoms are not entirely consistent with the medical evidence and

other evidence in the record for the reasons explained in this decision.” Id.

The ALJ also reviewed Galgoci’s medical records. Id. at 24. He noted that

on May 7, 2019 (which is prior to the alleged onset date in this case), Galgoci

“underwent a lumbar laminectomy at L1/L2/L3 with resection of the spinous

process and decompression[,]” and “[a]fter completion of physical/occupational

therapy, [Galgoci] was discharged in satisfactory condition.” Id. The ALJ then

summarized Galgoci’s medical records from the relevant period:

In early 2021, x-ray studies showed that the claimant developed

moderately severe degenerative joint disease at L4/L5 with disc

6 For readability purposes, here—and elsewhere—when citing or quoting the

ALJ’s decision, we omit the ALJ’s citations to the record.

space narrowing but without fracture. MRI studies revealed

moderate to severe multilevel spondylosis without acute

osseous findings. Despite tenderness and weakness, physical

examination findings showed that the claimant’s range of

motion was normal and that his reflexes were normal. Straight

leg raise testing results were also normal. Care throughout late

2021 and early 2022 was largely monitory in nature. On March

7, 2022, the claimant reported ongoing back pain. However, no

acute or extreme symptomatology was noted.

Id. The ALJ determined that Galgoci’s statement about his symptoms were not

fully corroborated by the medical records, and he concluded that Galgoci’s

“symptomatology would be reasonably accommodated by the limitation to the

range of sedentary exertional work as outlined in the established residual

functional capacity.” Id.

After reviewing the medical records, the ALJ addressed Galgoci’s activities

of daily living as set forth in his testimony and function reports:

More specifically, he prepares simple meals (sandwiches and

microwave foods), is able to work from a seated position, and

shops via computer/the mail/in stores. The claimant leaves his

home daily and he retains the capacity to handle his financial

affairs, including paying bills, counting change, and

maintaining checking/savings accounts. He enjoys watching

television, completing craft projects, and making small repairs.

The claimant is able to interact with others and he follows oral

and written instructions very well. He is able to pay attention

and to finish that which he starts. No limitations were noted

with his ability to reach and to sit (no need for a sit/stand option

was reported). The claimant is able to cope with stress and to

adapt to change. He uses a cane to walk. Dressing and

performing his personal care needs remains within the

claimant’s residual functional capacity. The claimant performs

simple cleaning such as “wipping [sic] stuff off.” Paying

attention is not a problem for the claimant.

Id. at 24–25. Acknowledging that Galgoci “has some limitations performing these

activities (for example, his step-daughter helps him with removing his socks and

shoes),” that ALJ concluded that “while none of these activities is dispositive,

taken together and considered in conjunction with the above medical evidence of

record, they suggest that the claimant could perform work within the above

parameters on a sustained and continuous basis.” Id. at 25.

In making the RFC assessment, the ALJ also considered the opinion

evidence in the record. There were three medical opinions. The ALJ first

considered the medical sources statements of Jennifer Zellner.7

FP Zellner8 describes her “[f]requency and length of contact with” Galgoci

as “every 6 months, 15 minutes.” Id. at 484. She asserts that Galgoci has

degenerative joint disease, hypertension, gout, sleep apnea, and spinal stenosis

7 Zellner completed two medical source statements—on dated February 15,

2021, and one date November 1, 2021. Admin. Tr. at 552–23, 484–85. Although

these medical source statement have different dates, the body of each medical

source statement is the same. From here on out, we cite to the November 1, 2021

statement as it the most recent statement.

8 It appears from the record that Zellner is a Physician’s Assistant, Certified.

See Admin. Tr. at 513 (medical record listing “Jennifer Zellner, PA-C”). The ALJ

refers to her as “Jennifer Zellner, FP,” id. at 25, and the parties in their briefs refer

to her as FP Zellner, see e.g. doc. 11 at 6, doc. 13 at 9; doc. 14 at 2. We will refer

to her as FP Zellner since that is how the ALJ and the parties refer to her.

with neuropathy, which results in symptoms of back pain, leg numbness. and

weakness. Id. FP Zellner concludes that Galgoci’s prognosis is “Fair.” Id. She

opines that with normal breaks, Galgoci can sit for two to four hours in an eight-

hour workday, and he can stand/walk for up to one hour in an eight-hour workday.

Id. She also asserts that every 30 minutes Galgoci must alternate between siting

and standing. Id. According to FP Zellner, Galgoci can only occasionally lift/carry

less than 10 pounds; he can frequently push/pull with his upper extremities, but he

can never push/pull with his lower extremities; he can occasionally reach (in all

directions, including overhead); he can frequently handle, finger, and feel; and he

must avoid temperature extremes and hazards, such as heights. Id. 484–85. She

also opines that occasionally Galgoci’s pain and other symptoms would interfere

with his ability to maintain the attention and concentration needed to perform

simple work tasks, and he would be absent four or more days per month due to his

impairments and/or treatments. Id. at 485. She lists drowsiness as a side effect of

his medications. Id. In response to the directive on the form asking her to

“describe the objective findings, clinical observations, and symptomology

supporting [her] assessment,” FP Zellner writes: “Pt c̅ lower extremity weakness, ↓

patellar reflexes, guarded gait, ↓ [L] Achilles reflex.” Id.

After summarizing most, but not all,9 of FP Zellner’s medical source

statement, the ALJ found her opinions unpersuasive:

The undersigned finds these opinions unpersuasive, as

the evidence of record, inclusive of the examination findings

and the objective evidence, does not support this significant

degree of limitation. More specifically, limiting the claimant to

lifting less than 10 pounds is inconsistent with the claimant’s

admission that he is able to lift 10 to 20 pounds, even though

the undersigned limited the claimant to lifting at a sedentary

exertional level. Moreover, the claimant acknowledged that he

is able to perform some work/various activities at a seated

position, while these opinions indicate that the claimant is

unable to sustain full time work on a competitive basis. Also,

the physical examination findings do not reflect severity that

would preclude the claimant from performing all work activity.

Accordingly, because these opinions are not supported or

corroborate by the evidence, i.e. they overestimate the

claimant’s degree of limitation, the undersigned finds these

opinions unpersuasive.

Id. at 25–26.

The ALJ also considered the opinions of the state agency physicians—Dr.

Louis Biagio Bonita and Dr. Angela Teresa Walker. Id. at 26. He found the

opinions of Drs. Bonita and Walker unpersuasive because they “clearly

underestimate the claimant’s degree of restriction” and “the evidence of record,

inclusive of the physical examination findings and the objective evidence, supports

a finding that the claimant incurs a greater degree of limitation.” Id. at 26. The

9 The ALJ does not mention FP Zellner’s statement regarding the objective

findings, clinical observations, any symptomology for her assessment.

ALJ explained that he found the opinions unpersuasive because Galgoci “is limited

in the performance of daily tasks (he does not prepare complex meals, clean, rarely

shops, and limits his standing/walking),” and “the physical examination findings

although not reflective of a disabling physical limitation, do[] justify restricting the

claimant to the performance of a range of sedentary work from a standing,

walking, lifting, and carrying perspective.” Id.10

The ALJ summarized the basis for his determination that Galgoci has the

RFC to perform sedentary work with limitations:

. . . The above residual functional capacity assessment is

supported by and consistent with the objective medical

evidence, including the measurable findings upon clinical

examination. The claimant reported complaints of multiple

physical problems. The existence of his problems and resultant

symptomatology are supported somewhat by the objective

evidence of record, but not to the extent as alleged by the

claimant. Limitations to exertional, postural, and

environmental factors have been included to address the

claimant’s well-supported objective deficits of record. Based

upon the claimant’s spinal issues and ongoing obesity,

restrictions to sedentary work with the opportunity to use a

single point cane, in addition to climbing, stooping, kneeling,

crouching, and crawling restrictions, were warranted.

Moreover because of the claimant’s foot drop, fall risk, and

exacerbation caused by environmental factors, accommodations

to hazards (heights and machinery), vibrations, cold

temperatures, and left lower extremity pushing/pulling (the

10 Although the ALJ found the opinions of Drs. Bonita and Walker

unpersuasive, he nevertheless noted that he “does acknowledge that greater

deference was paid to the opinion of Dr. Walker, as that opinion afforded the

claimant increased accommodations (including to environmental factors

overlooked by Dr. Bonita).” Id.

operation of foot controls) were included in the established

residual functional capacity. The residual functional capacity is

consistent with the claimant’s activity level as indicated. The

objective evidence does not support a finding that the claimant

is more severely limited than stated above. In light of the

evidence of record, the above residual functional capacity gives

the claimant the benefit of the doubt but still does not preclude

him from performing work activity.

Id. at 26–27.

E. Step Four.

At step four of the sequential-evaluation process, the ALJ found that Galgoci

could perform his past relevant work as an office clerk. Id. at 27. The ALJ

observed that although the vocational expert testified that Galgoci’s past relevant

work as an office clerk was classified as light work, she also testified that as

Galgoci performed that work, it falls into the sedentary exertional class. Id. And

comparing Galgoci’s RFC “with the physical and mental demands of this work,”

the ALJ concluded that Galgoci “is able to perform it as actually performed.” Id.

Because the ALJ concluded at step four that Galgoci could perform his past

relevant work, the ALJ did not need to—and did not—address step five of the

sequential-evaluation process. The ALJ concluded that Galgoci was not disabled

from April 27, 2021 (which is the alleged onset date), through the date of the

ALJ’s decision on July 8, 2022. Id. at 28. Thus, he denied Galgoci’s claim for

benefits. Id.

V. Discussion.

Galgoci presents one overarching claim that the ALJ failed to account for

the “total limiting effects” of his severe impairments. Doc. 11 at 1. Within that

overarching claim, Galgoci makes the following more specific claims: (1) that in

making the RFC determination, the ALJ failed to account for the time he will need

to be off task to manage his symptoms, id. at 7; (2) that the ALJ’s findings that he

could perform work at heights with a cane or perform the lifting, standing, and

walking requirements for sedentary work were not reasonable, id.; (3) that the ALJ

failed to acknowledge or discuss the evidence of his “guarded gait, lumbar

tenderness, low Achille’s reflexes, spasms, and decreased bilateral patellar reflex,”

id. at 10; (4) that the ALJ improperly used his limited activities of daily living to

conclude that he had the RFC to perform to limited sedentary work. id. at 10–11;

(5) that the ALJ failed to consider his exemplary, 34-year work history when

making his credibility finding, id. at 13–14; and (6) that the ALJ’s finding that FP

Zellner’s opinion was unpersuasive was improper. Id. at 11–13.

Galgoci’s brief does not comply with the local rules of court, which require

that the plaintiff’s brief in a social security action include, among other things, a

statement of errors setting “forth in separate numbered paragraphs the specific

errors committed at the administrative level which entitle plaintiff to relief[,]” and

an argument that is “divided into sections separately addressing each issue” and

that “set[s] forth the contentions of plaintiff with respect to each issue and the

reasons therefor.” M.D. Pa. L.R. 83.40.4(b), 83.40.4(c). Galgoci’s failure to

comply with the rules made it difficult to isolate his claims. Nevertheless, as set

forth above, we have done so. Moreover, the Commissioner does not object that

Galgoci’s brief does not comply with the rules in this regard,11 and the

Commissioner has addressed Galgoci’s claims. Thus, we will address Galgoci’s

claims in this case.

A. The ALJ failed to adequately articulate his reasons for finding the

opinions of FP Zellner unpersuasive.

We first address Galgoci’s claim regarding the ALJ’s treatment of FP

Zellner’s opinions. We start with a brief overview of the regulations regarding

opinion evidence. The regulations in this regard are different for claims filed

before March 27, 2017 (“old regulations”), on the one hand, and for claims, like

Galgoci’s, filed on or after March 27, 2017 (“new regulations”) on the other hand.

The new regulations applicable here have been described as a “paradigm shift” in

the way medical opinions are evaluated. Mercado v. Kijakazi, 629 F. Supp. 3d 260,

11 The Commissioner does asserts that Galgoci’s brief does not contain a

“Statement of the Facts,” and, thus, the court should accept his statement of the

facts. Doc. 13 at 5 n.3. But Galgoci’s brief contains a “Statement of the Case”

section, which is what is required by the Local Rules. See M.D. Pa. L.R.

83.40.4(a).

279 (M.D. Pa. 2022). Under the old regulations, “ALJs were required to follow

regulations which defined medical opinions narrowly and created a hierarchy of

medical source opinions with treating sources at the apex of this hierarchy.” Id. at

280. But under the new regulations, “[t]he 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.” Id.

Under the new regulations, the ALJ evaluates the persuasiveness of medical

opinions and prior administrative medical findings using the following factors:

(1) supportability, (2) consistency, (3) relationship with claimant,

(4) specialization, and (5) other factors. 20 C.F.R. § 404.1520c(c). The most

important factors are supportability and consistency. 20 C.F.R. § 404.1520c(a). As

such, the ALJ must explain how he or she “considered the supportability and

consistency factors for a medical source's medial opinions or prior administrative

medical findings in” his or her determination or decision. 20 C.F.R.

§ 404.1520c(b)(2). The ALJ may, but is not required to, explain how he or she

considered the remaining three factors in determining the persuasiveness of a

medical opinion. 20 C.F.R. § 404.1520c(b)(2).

Supportability and consistency are defined in 20 C.F.R. § 404.1520c(c). As

the regulation provides, supportability means: “The 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.” 20 C.F.R. § 404.1520c(c)(1). “Simply put, supportability is an inquiry

geared toward assessing how well a medical source supported and explained their

opinion(s).” Acosta Cuevas v. Commissioner of Social Security, No. 20-CV-0502,

2021 WL 363682, at *10 (S.D.N.Y. Jan. 29, 2021), adopting report and

recommendation, 2022 WL 717612, at *1 (S.D.N.Y. Mar. 10, 2022). On the other

hand, consistency means: “The 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.” 20 C.F.R. § 404.1520c(c)(2). The

consistency factor focuses on “how well a medical source is supported, or not

supported, by the entire record.” Acosta Cuevas, 2021 WL 363682, at *10.

Against this backdrop, we address the ALJ's consideration of FP Zellner’s

opinions.

Here, as to supportability, the ALJ does not even mention the reasons that

FP Zellner set forth in her medical source statement for the limitations that she

opined Galgoci experiences. In response to the directive on the form asking her to

“describe the objective findings, clinical observations, and symptomology

supporting [her] assessment,” FP Zellner writes: “Pt c̅ lower extremity weakness,

↓ patellar reflexes, guarded gait, ↓ [L] Achilles reflex.” Admin. Tr. at 521. The

ALJ does not refer to that explanation when addressing the persuasiveness of FP

Zellner’s opinions. In fact, he does not mention or cite to that portion of FP

Zellner’s medical source statement at all in his opinion. Because the ALJ did not

address FP Zellner’s explanation for her opinions, he has not adequately explained

his conclusion regarding the supportability of FB Zellner’s opinions.

The ALJ’s analysis as to consistency is also lacking. Addressing FP

Zellner’s opinion that Galgoci can occasionally lift/carry less than 10 pounds, the

ALJ asserts that “limiting the claimant to lifting less than 10 pounds is inconsistent

with the claimant’s admission that he is able to lift 10 to 20 pounds, even though

the undersigned limited the claimant to lifting at a sedentary exertional level.” Id.

at 25. Galgoci asserts that the ALJ mischaracterized his testimony regarding what

he could lift. When the ALJ asked how much weight he was able to comfortably

lift and carry, Galgoci testified:

I -- very little, it seems like no matter what I try to carry,

like even stuff around the house, you know, a plate of food, I

have to be -- just something like that that, it isn’t a problem like

something that might weigh a few pounds, but anything of any

size, is you know, anything over, I’d say, you know, 10, 20

pounds, I really have an issue keeping my balance if I don’t

have something to lean against.

Id. at 46. Galgoci asserts that while FP Zellner’s assessment was about what he

could lift/carry in the context of an eight-hour workday, and it is not inconsistent to

say that someone who may rarely be able to lift 10 to 20 pounds could only

occasionally (meaning up to one-third of an eight-hour workday) lift less 10

pounds. Galgoci’s argument in this regard is not without some force, but it is not

his strongest argument for why the ALJ’s consistency analysis was flawed.

Sitting is the crux of a sedentary job. And the ALJ’s analysis regarding FP

Zellner’s opinions regarding Galgoci’s ability to sit is flawed. Recall, FP Zellner

opined that with normal breaks, Galgoci can sit for two to four hours in an eight-

hour workday, and he must alternate between siting and standing every 30 minutes.

Id. at 484. The ALJ addressed FP Zellner’s opinion about Galgoci’s limitations

regarding sitting merely by observing that “the claimant acknowledged that he is

able to perform some work/various activities at a seated position, while these

opinions indicate that the claimant is unable to sustain full time work on a

competitive basis.” Id. at 25. As Galgoci’s argues, the fact that he can do some

work/activities while seated, simply is not inconsistent with FP Zellner’s opinion

regarding his sitting ability during an eight-hour workday. And the ALJ did not

address at all FP Zellner’s opinion that Galgoci’ must alternate between sitting and

standing every 30 minutes.12, 13

When addressing FP Zellner’s opinions, the ALJ also asserts that “the

physical examination findings do not reflect severity that would preclude the

claimant from performing all work activity.” Id. at 25. The question is not,

12 In another portion of his decision, that ALJ does say that Galgoci noted no

limitations in his ability “to sit (no need for a sit/stand option was reported).”

Admin. Tr. at 24. In support of that assertion, that ALJ cited the first Function

Report submitted by Galgoci. Id. (citing B6E). In that first Function Report,

Galgoci did not check the box on the form indicating that his injuries or conditions

affect his sitting. Id. at 253. But on a later Function Report, he did check the box

on the form indicating that his injuries or conditions affect this sitting. Id. at 272.

And he testified at his hearing that that he has trouble sitting and he must change

positions. Id. at 45. Moreover, FP Zellner opined that Galgoci must alternate

between sitting and standing every 30 minutes, which opinion the ALJ did not

address.

13 FP Zellner also opined that Galgoci can only stand/walk for up to 1 hour in

an 8-hour workday, that he must avoid temperature extremes and hazards, such as

heights, that occasionally Galgoci’s pain and other symptoms would interfere with

his ability to maintain the attention and concentration needed to perform simple

work tasks, and he would be absent four or more days per month due to his

impairments and/or treatments. Id. 484–85. Galgoci asserts that the ALJ failed to

account for the time he would be off-task to manage his symptoms, and that the

ALJ did not reasonably conclude that he could perform at heights or perform the

standing and walking requirements of sedentary work. Doc. 11 at 7. But Galgoci

does not specifically argue that the ALJ failed to discuss the opinions of FP Zellner

as to these issues. Rather, Galgoci addresses the ALJ’s discussion of FP Zellner’s

opinions by addressing what the ALJ said, not what he failed to say. We note,

however, the ALJ did not discuss FP Zellner’s opinions regarding Galgoci’s

limitations regarding standing/walking, avoiding temperature extremes and

hazards, or the time he would miss work.

however, whether Galgoci is precluded from all work activity, but whether he has

an “inability to engage in any substantial gainful activity.” 42 U.S.C.

§ 423(d)(1)(A). Where an ALJ otherwise adequately articulates his or her

reasoning, an error in stating the disability standard does not necessarily require

reversal. Vega v. Comm’r of Soc. Sec., 358 F. App'x 372, 376 (3d Cir. 2009)

(concluding that “[a]lthough the ALJ may have been imprecise when he stated that

‘there [was] no indication from [Vega's] treating physician that her limitations

would preclude all work activity,’ . . . this error does not require reversal” and

observing that the ALJ’s “finding that Vega was able to continue substantial

gainful activity, which is the proper legal standard, is supported by the record”).

But here, as set forth above, the ALJ has not sufficiently articulated his reasoning

for rejecting the opinions of FP Zellner. And, as Galgoci points out, in support of

his assertion that the physical examination findings do not preclude Galgoci from

all work activity, the ALJ cites two full exhibits, without citation to specific parts

of those exhibits and without a discussion as the particular evidence on which he

was relying. The ALJ’s conclusory assertion that the physical examination

findings do not preclude Galgoci from all work activity does not shed light on the

basis for the ALJ’s rejection of FP Zellner’s opinions.

In sum, although that ALJ concluded that FP Zellner’s opinions “are not

supported or corroborate[d] by the evidence, i.e., they overestimate the claimant’s

degree of limitation,” he has not sufficiently explained why that is so. Specifically,

he has not adequately addressed the supportability and consistency of FP Zellner’s

opinions. Thus, we cannot say that substantial evidence supports the ALJ’s

decision.

B. Other Claims.

Because we conclude that the Commissioner’s decision must be vacated and

the case remanded based on the ALJ’s failure to sufficiently articulate why he

found FP Zellner’s opinions unpersuasive, we will not address Galgoci’s remaining

claims of error. “Plaintiff’s additional claims of error may be remedied through

the case’s treatment on remand.” Brown v. Saul, No. CV 3:18-1619, 2020 WL

6731732, at *7 (M.D. Pa. Oct. 23, 2020), report and recommendation adopted,

2020 WL 6729164, at *1 (M.D. Pa. Nov. 16, 2020). “A remand may produce

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

C. Remand is the appropriate remedy.

Because the ALJ’s decision is not support by substantial evidence, the

question then is whether the court should remand the case to the Commissioner for

further proceedings or award benefits to Galgoci, as he suggests. See doc. 1 at 2

(requesting that the court reverse the Commissioner’s decision or, in the

alternative, remand the case for further proceedings). We conclude that remand is

the appropriate remedy.

Under sentence four of 42 U.S.C. § 405(g), the court has the “power to enter,

upon the pleadings and transcript of the record, a judgment affirming, modifying,

or reversing the decision of the Commissioner of Social Security, with or without

remanding the cause for a rehearing.” Thus, although a remand is often the

appropriate remedy, the court may also enter an order awarding the claimant

benefits. See Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 358 (3d Cir. 2008)

(remanding the case to the district court with directions to enter an order awarding

the payment of benefits); Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000)

(same); Podedworny v. Harris, 745 F.2d 210, 223 (3d Cir. 1984) (same). But an

“award [of] benefits should be made only when the administrative record of the

case has been fully developed and when substantial evidence on the record as a

whole indicates that the claimant is disabled and entitled to benefits.” Podedworny,

745 F.2d at 221–22. Whether there has been excessive delay and/or prior remands

also bears on whether to award benefits or to remand for further proceedings. Diaz

v. Berryhill, 388 F. Supp. 3d 382, 391 (M.D. Pa. 2019). “Thus, in practice any

decision to award benefits in lieu of ordering a remand for further agency

consideration entails the weighing of two factors: First, whether there has been an

excessive delay in the litigation of the claim which is not attributable to the

claimant; and second, whether the administrative record of the case has been fully

developed and substantial evidence on the record as a whole indicates that the

claimant is disabled and entitled to benefits.” Id.

Here, there has not been excessive delay in the litigation of Galgoci’s

claims, and we cannot say that substantial evidence on the record as a whole shows

that Galgoci is disabled and entitled to benefits. Thus, we will remand the case to

the Commissioner for further proceedings.

VI. Conclusion.

For the foregoing reasons, we will vacate the decision of the Commissioner

and remand the case to the Commissioner for further proceedings pursuant to

sentence four of 42 U.S.C. § 405(g). An appropriate order follows.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge