# Cottingham

> District Court, M.D. Pennsylvania · March 9, 2026

URL: https://www.frixlaw.com/law-library/cases/11311145

## Case

- **Full name:** Christopher Cottingham v. Frank Bisignano, Commissioner of Social Security
- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 9, 2026
- **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

CHRISTOPHER COTTINGHAM, : CIVIL NO.: 1:24-cv-02130
:
Plaintiff, : (Magistrate Judge Schwab)
:
v. :
:
:
FRANK BISIGNANO,1 :
Commissioner of Social Security, :
:
Defendant. :

MEMORANDUM OPINION
I. Introduction.
In this social security action, Plaintiff Christopher Cottingham seeks judicial
review of the final decision of the Commissioner of Social Security
(“Commissioner”) denying his claims for disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act.
We have jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons

1 Frank Bisignano is now the Commissioner of Social Security, and he is
automatically substituted as the defendant in this action. See Fed. R. Civ. P.
25(d) (providing that when a public officer sued in his or her official capacity
ceases to hold office while the action is pending, “[t]he officer’s successor is
automatically substituted as a party”); 42 U.S.C. § 405(g) (“Any action instituted
in accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in
such office.”).
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. 7, 7-1, 7-
2.2 In October 2018, Cottingham filed an application for disability insurance
benefits and an application for supplemental security income, alleging that he has

been disabled since July 1, 2018. See Admin. Tr. at 123–131. After the
Commissioner administratively denied his claims, id. at 132–35, 160–64,
Cottingham requested an administrative hearing, id. at 169–171. On January 28,
2020, Cottingham—who was represented by counsel—as well as a vocational

expert testified at a hearing before Administrative Law Judge Scott Staller (the
“ALJ”). Id. at 74–93. On February 28, 2020, the ALJ denied Cottingham’s claims
for benefits. Id. at 107-21.

Cottingham appealed the ALJ’s decision to the Appeals Council, which
granted his request for review, vacated the ALJ’s decision, and remanded the case
to the ALJ. Id. at 147–54. The Appeals Council remanded the case to the ALJ for
the ALJ to take the following actions and resolve the following issues: (1) obtain a

2 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
Cottingham’s claims.
complete copy of an exhibit that was missing hundreds of pages; (2) address the
statement of Cottingham’s mother; (3) “[o]btain additional evidence concerning

[Cottingham]’s impairments in order to complete the administrative record in
accordance with the regulatory standards regarding consultative examinations and
existing medical evidence”; (4) “[f]urther evaluate [Cottingham]’s alleged

symptoms and provide [a] rationale in accordance with the disability regulations
pertaining to evaluation of symptoms”; and (5) further consider Cottingham’s
“maximum residual functional capacity and provide appropriate rationale with
specific references to evidence of record in support of the assessed limitations.” Id.

at 150–51 (citations omitted).
After remand, on July 10, 2023, Cottingham appeared with counsel at
another hearing before the ALJ. Id. at 49–73. Cottingham testified at the hearing

as did a vocational expert. Id. On April 3, 2024, the ALJ conducted a third
hearing. Id. at 33–48. Cottingham, who was represented by counsel, was present
as was a vocational expert, but neither of them testified. Id. Rather, only a medical
expert—Dr. Krishnan—testified. Id.

On April 23, 2024, the ALJ denied Cottingham’s claims for benefits. Id. at
9–32. Cottingham 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 December 2024, Cottingham, represented by counsel, began this action by
filing a complaint seeking review of the Commissioner’s decision denying his

claims. See Doc. 1. He requests that the court reverse the Commissioner’s decision
and award him benefits or, in the alternative, remand the case for further
proceedings. Id. at 3–4 (Wherefore Clause). He also seeks “such relief” as the

court deems justified, including attorney’s fees. Id. at 4.
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. 5. The
Commissioner then filed an answer and a certified transcript of the administrative

proceedings. Docs. 6, 7. The parties filed briefs, see docs. 14, 16, 19, 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 Cottingham 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 or Title XVI of the Social Security Act, a
claimant generally 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 42 U.S.C. §1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a),
416.905(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), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1505(a), 416.905(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).3 Unlike

3 “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 Cottingham met the insured-status requirements through
January 1, 2026. Admin. Tr. at 13, 15. We note that in his earlier opinion, the ALJ
stated that Cottingham met the insured-status requirements through September 30,
with disability insurance benefits under Title II of the Social Security Act,
“[i]nsured status is irrelevant in determining a claimant’s eligibility for

supplemental security income benefits” under Title XVI of the Social Security Act.
Snyder v. Colvin, No. 3:16-CV-01689, 2017 WL 1078330, at *1 (M.D. Pa. Mar.
22, 2017). Supplemental Security Income “is a federal income supplement

program funded by general tax revenues (not social security taxes)” “designed to
help aged, blind or other disabled individuals who have little or no income.” Id.
The ALJ follows a five-step sequential-evaluation process to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(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), 416.920(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

2018. Id. at 113. And September 30, 2018, is the date that appears in various other
places in the record. See, e.g., id. at 54, 98, 139. But because neither party raises
an issue regarding the date last insured, we do not address the issue.
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), 416.945(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), 416.945(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 April 23, 2024, the ALJ denied Cottingham’s claims for benefits. Admin.

Tr. at 9–32. He proceeded through the five-step sequential-evaluation process.

A. Step One.
At step one of the sequential-evaluation process, the ALJ found that
Cottingham had not engaged in substantial gainful activity since his alleged onset

date of July 1, 2018. Id. at 15.

B. Step Two.
At step two of the sequential-evaluation process, the ALJ found that
Cottingham had the following severe impairments: subarachnoid hemorrhage and

intracranial aneurysm; migraines; hypertension; depression; and neurocognitive
disorder. Id. The ALJ also found that Cottingham had several other medically
determinable impairments that are non-severe. Id. He further determined that
although Cottingham alleges issues with his right leg, he does not have a medically
determinable impairment regarding his right leg. Id. And, “even if [Cottingham]’s
right leg symptoms could reasonably [be] attributed to one of [Cottingham]’s

medically determinable impairments, such alleged symptoms would not require
any limitations in [Cottingham]’s residual functional capacity.” Id. at 15–16.4

C. Step Three.
At step three of the sequential-evaluation process, the ALJ found that

Cottingham 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 16–18. Specifically, with regard to Cottingham’s hypertension, the ALJ
considered the listings under section 4.00 of the listings, and with regard to

Cottingham’s subarachnoid hemorrhage he considered Listing 11.04. Id. at 16.
The ALJ also stated that “[w]hile there is no specific Listing for migraine
headaches, SSR 19-4p provides in pertinent part that a primary headache disorder

may be found to medically equal the requirements of Section 11.02 of the
Listings.” Id. But, the ALJ concluded, “the evidence of record does not indicate
that an acceptable medical source has opined that [Cottingham]’s migraine
headaches medically equal the requirements of Section 11.02 of the Listings.” Id.

4 For readability purposes, here—and elsewhere—when citing or quoting the
ALJ’s decision, we omit the ALJ’s citations to regulations as well as citations to
the record.
The ALJ further considered Listings 12.02 and 12.04 in connection with
Cottingham’s mental impairments. Id. In doing so, he considered the four broad

areas of mental functioning set forth in the disability regulations for evaluating
mental disorders5 and in the listings, known as the paragraph B criteria.6 The ALJ
determined that Cottingham had mild limitations in understanding, remembering,

or applying information and in adapting or managing oneself. Id. at 16–17. And,
the ALJ determined, he has moderate limitations in interacting with others and in
concentrating, persisting, or maintaining pace. Id. at 17.

5 When “mental impairments are at issue, additional inquiries are layered on
top of the basic five-step disability analysis.” Hess v. Comm’r Soc. Sec., 931 F.3d
198, 202 (3d Cir. 2019). The regulations set forth a “special technique” used for
evaluating mental impairments. See 20 C.F. R. § 404.1520a. As part of that
“special technique,” a claimant’s degree of functional limitation is rated in four
broad functional areas: understanding, remembering, or applying information;
interacting with others; concentrating, persisting, or maintaining pace; and
adapting or managing oneself. Id. at § 404.1520a(c)(3). A claimant’s degree of
limitation in these functional areas is rated using “the following five-point scale:
None, mild, moderate, marked, and extreme.” Id. at § 404.1520a(c)(4). The ratings
in these four broad functional areas are used at Step 2 to determine if the claimant
has a severe mental impairment, and if the claimant has a severe mental
impairment, the ratings are also used at Step 3 to determine if the claimant’s severe
mental impairment meets or equals a listed mental disorder. Id. at § 404.1520a(d).

6 The listings for mental disorders contain either two paragraphs (A and B)
or three paragraphs (A, B, and C). See 20 C.F.R. § Pt. 404, Subpt. P, App. 1,
12.00.A.2. Except as to Listing 12.05 (intellectual disorder), paragraph B of each
of the listings for the mental disorders sets forth the same four functional criteria as
set forth in 20 C.F. R. § 404.1520a, and the listings use the same five-point rating
scale as those regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00.A.2.b,
12.00.E, 12.00.F. This is what the ALJ is referring to when he refers to the
paragraph B criteria.
“Because [Cottingham]’s mental impairments do not cause as least two
‘marked’ limitations or one ‘extreme’ limitation,” the ALJ concluded that the

paragraph B criteria were not satisfied. Id. The ALJ recognized that the paragraph
B criteria are not an RFC; rather, they “are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process[,]” and the RFC

“assessment used at steps 4 and 5 of the sequential evaluation process requires a
more detailed assessment.” Id. at 18. And he asserted that the RFC that follows
“reflects the degree of limitation” he “has found in the ‘paragraph B’ mental
function analysis.” Id. The ALJ also determined that Cottingham did not satisfy

the paragraph C criteria. Id. at 17.

D. The RFC.
The ALJ then determined that Cottingham had the RFC to do light work7
with some limitations. Id. at 18. He concluded that Cottingham “can understand,

remember, or carry out simple instructions.” Id. And he explained that “[s]imple

7 See 20 C.F.R. § 404.1567(b) (“Light work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you must have
the ability to do substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of
time.”).
instructions can be easily understood, easily performed, basic, not complicated,
clear and straightforward.” Id. The ALJ also concluded that Cottingham “can

perform tasks that do not involve a specific production rate pace, such as assembly
line work or an hourly production quota” and he “can deal with occasional changes
in a routine work setting.” Id. The ALJ further concluded that Cottingham can

“make judgments on simple, work-related decisions,” and he “can occasionally
interact with the public, coworkers, and supervisors in a routine work setting.” Id.
In making this RFC assessment, the ALJ considered Cottingham’s testimony
and assertions regarding his limitations. Id. at 18–19. The ALJ concluded that

although Cottingham’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms[,]” his “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. at 19. The ALJ also considered
Cottingham’s medical records as to his physical and mental impairments and the
treatment he received. Id. at 19–21. And he concluded that the medical records

indicate that Cottingham’s treatment is effective in limiting his symptoms related
to both his severe physical impairments as well as his severe mental impairments,
and he does not experience symptoms or limitations related to his severe

impairments to the extent he alleges. Id. at 20, 21.
The ALJ also concluded that although Cottingham “alleged experiencing
medication side effects of confusion, fatigue, and dizziness,” his medical records

do not show either that he “persistently reported experiencing such medication side
effects” or that he was “persistently assessed with any abnormal clinical
examination findings that were attributable to [his] medication regimen by an

acceptable medical source.” Id. at 21–22. Thus, the ALJ concluded, Cottingham
“does not experience any medication side effects with such frequency, intensity, or
persistence that they require any accommodation in his residual functional
capacity.” Id. at 22.

The ALJ further considered the medical opinions in the record. Id. at 22–23.
Specifically, he considered and found unpersuasive the opinions of Brennan Ross,
PA-C, who was one of Cottingham’s treatment providers. Id. at 22. He considered

and found persuasive the opinion of a state agency medical consultant. Id. at 22–
23. And finally, the ALJ considered the opinion of Dr. Krishnan, the medical
expert who testified at the third hearing. Id. at 23.8 After summarizing Dr.
Krishnan’s opinion, the ALJ concluded that it was supported by Dr. Krishnan’s

review of Cottingham’s medical records and generally consistent with

8 Although the ALJ incorrectly referred to Dr. Krishnan as a vocational
expert, it is clear from his discussion that he knew Dr. Krishnan was a medical
expert. See Admin. Tr. at 23.
Cottingham’s medical records. Id. But the ALJ concluded that Dr. Krishnan’s
opinion was not completely consistent with the medical records:

. . . However, the aspects of Dr. Krishnan’s opinion pertaining
to being off task and exposure to noise is not consistent with the
lack of any ongoing abnormal clinical examination findings
pertaining to attention and concentration and notations in
[Cottingham]’s medical records indicating [Cottingham] was
noted to be alert and oriented times three and [Cottingham] was
noted to be in no distress. Furthermore, the aspect of Dr.
Krishnan’s opinion pertaining to vibration is not consistent with
clinical examination findings of 5/5 strength of the wrists, feet,
and knees, no pronator drift, normal muscle tone, 5/5 strength, a
smooth moving gait, and intact motor and sensory functioning
of the lower extremities. Additionally, the aspects of Dr.
Krishnan’s opinion regarding lifting and carrying does not
adequately consider all of [Cottingham]’s symptoms related to
[Cottingham]’s severe impairments.
Id. Thus, the ALJ found Dr. Krishnan’s opinion persuasive only “to the extent it
indicates [Cottingham] is capable of performing a range of work at the light
exertional level.” Id.
The ALJ also considered the statement of Cottingham’s mother, and he
found her statement not persuasive on the basis it was not consistent with
Cottingham’s medical records. Id. at 23–24.
The ALJ then summarized the reasons for his RFC assessment:
As discussed above, [Cottingham]’s allegations regarding his
symptoms and limitations are not consistent with all of the
evidence of record. However, the undersigned has
accommodated some degree of [Cottingham]’s symptoms
related to his severe physical impairments in his residual
functional capacity by limiting [Cottingham] to work at the
light exertional level. Additionally, to accommodate some
degree of [Cottingham]’s symptoms related to his mental
impairments, the undersigned has limited [Cottingham] to jobs
that include understanding, remembering, or carrying out
simple instructions, no specific production rate pace, such as
assembly line work or an hourly production quota, occasional
changes in a routine work setting[,] making judgments on
simple, work-related decisions, and occasional interaction with
the public, coworkers, and supervisors in a routine work setting
Id. at 24.

E. Step Four.
At step four of the sequential-evaluation process, the ALJ found that
Cottingham could not perform his past relevant work as a heavy equipment
operator and a stevedore. Id.

F. Step Five.
At step five of the sequential-evaluation process, considering Cottingham’s
age, education, work experience, and RFC, as well as the testimony of a vocational
expert, the ALJ found that there were jobs—such as inspector, sorter, and
assembler—that exist in significant numbers in the national economy that
Cottingham could perform. Id. at 25.
In sum, the ALJ concluded that Cottingham was not disabled from July 1,

2018 (which is the alleged onset date), through the date of the ALJ’s decision on
April 23, 2024. Id. at 25–26. Thus, he denied Cottingham’s claims for benefits. Id.
at 26.

V. Discussion.
Cottingham presents several claims. We begin by addressing his claim that
the ALJ erred at step three of the sequential-evaluation process. Cottingham
contends that the ALJ failed to address Listing 11.02 with regard to his headaches.

For the reasons discussed below, we conclude that the ALJ erred at step three by
failing to articulate whether Cottingham’s headaches are equivalent to Listing
11.02. Before we address Cottingham’s specific contentions, we set forth the

standards applicable to the step three analysis of headaches.

A. Step 3 and Headaches.
Appendix 1 of 20 C.F.R. Part 404, Subpart P (“Listing of Impairments”)
describes, for each major body system, impairments that the Commissioner

considers to be severe enough to prevent a claimant from doing any gainful activity
regardless of the claimant’s age, education, or work experience. 20 C.F.R.
§ 404.1525(a). “Each impairment is defined in terms of several specific medical

signs, symptoms, or laboratory test results.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990). “[T]he medical criteria defining the listed impairments” is set “at a higher
level of severity than the statutory standard.” Id. at 532. “The listings define
impairments that would prevent an adult, regardless of his age, education, or work

experience, from performing any gainful activity, not just ‘substantial gainful
activity.’” Id. (italics in original). “The reason for this difference between the
listings’ level of severity and the statutory standard is that, for adults, the listings

were designed to operate as a presumption of disability that makes further inquiry
unnecessary.” Id. If a claimant’s impairment meets or is equivalent to a listed
impairment, then the claimant “is per se disabled and no further analysis is
necessary.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir.

2000). But “[i]f a claimant does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and five.” Plummer v. Apfel, 186
F.3d 422, 428 (3d Cir. 1999).

“In step three, the ALJ must determine whether [the claimant’s] impairment
matches, or is equivalent to, one of the listed impairments.” Burnett, 220 F.3d at
119. “For a claimant to show that his impairment matches a listing, it must meet
all of the specified medical criteria.” Zebley, 493 U.S. at 530 (italics in original);

see also 20 C.F.R. § 404.1525(c)(3) (“We will find that your impairment(s) meets
the requirements of a listing when it satisfies all of the criteria of that listing,
including any relevant criteria in the introduction, and meets the duration

requirement.”); 20 C.F.R. § 404.1525(d) (“To meet the requirements of a listing,
you must have a medically determinable impairment(s) that satisfies all of the
criteria in the listing.”). “An impairment that manifests only some of those criteria,

no matter how severely, does not qualify.” Zebley, 493 U.S. at 530 (footnote
omitted). “For a claimant to qualify for benefits by showing that his unlisted
impairment, or combination of impairments, is ‘equivalent’ to a listed impairment,

he must present medical findings equal in severity to all the criteria for [a] listed
impairment.” Id. at 531 (italics in original) (footnote omitted); see also 20 C.F.R.
§ 404.1526(a) (“Your impairment(s) is medically equivalent to a listed impairment
in appendix 1 if it is at least equal in severity and duration to the criteria of any

listed impairment.”).
The Third Circuit “requires the ALJ to set forth the reasons for his decision”
at step three. Burnett, 220 F.3d at 119. The purpose of this requirement “is to

ensure that there is sufficient development of the record and explanation of
findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d
Cir. 2004) (citing Burnett, 220 F.3d at 120). “Conclusory statements that a
condition does not constitute the medical equivalent of a listed impairment are

insufficient.” Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009). This
is because a bare conclusion that an impairment does not meet or equal a listing
‘“is beyond meaningful judicial review.’” Burnett, 220 F.3d at 119 (quoting Clifton

v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996)). But the ALJ is not required “to
use particular language or adhere to a particular format in conducting his analysis.”
Jones, 364 F.3d at 505. And the ALJ’s decision must be “read as a whole[.]” Id.

Consistent with the principle that the ALJ’s decision must be read as a
whole, “where an ALJ’s conclusion at step three is not adequately articulated,
courts may review the ALJ’s entire decision before determining whether remand is

required.” Izalia V. v. O’Malley, No. 4:22-CV-1819, 2024 WL 4505469, at *5
(M.D. Pa. Oct. 16, 2024). “In other words, ‘the Court must determine whether the
evidentiary discussion—regardless of its placement in the ALJ’s decision—
supports meaningful judicial review of the challenged Step Three finding(s)

pursuant to the applicable legal standards.” Fewell v. O’Malley, No. 1:23-CV-
00865, 2024 WL 4182115, at *4 (M.D. Pa. Aug. 19, 2024) (quoting Gonzalez v.
Saul, No. 1:17-CV-02524 (PAZ), 2019 WL 13401378, at *12 (D.N.J. Oct. 31,

2019)), report and recommendation adopted, 2024 WL 4173790 (M.D. Pa. Sept.
12, 2024). In this vein, the Social Security Administration issued a Social Security
Ruling which, among other things, sets forth articulation requirements for step 3
findings about medical equivalence. Soc. Sec. Ruling 17-2p, Titles II & XVI:

Evidence Needed by Adjudicators at the Hearings & Appeals Council Levels of the
Admin. Rev. Process to Make Findings About Med. Equivalence, 2017 WL
3928306 (S.S.A. Mar. 27, 2017) (“SSR 17-2p”). SSR 17-2p provides that if an

ALJ “believes that the evidence already received in the record does not reasonably
support a finding that the individual’s impairment(s) medically equals a listed
impairment, the [ALJ] is not required to articulate specific evidence supporting his

or her finding that the individual’s impairment(s) does not medically equal a listed
impairment.” Id. at *4. Rather, “[g]enerally, a statement that the individual’s
impairment(s) does not medically equal a listed impairment constitutes sufficient

articulation for this finding.” Id. And “[a]n ALJ’s articulation of the reason(s) why
the individual is or is not disabled at a later step in the sequential evaluation
process will provide rationale that is sufficient for a subsequent reviewer or court
to determine the basis for the finding about medical equivalence at step 3.” Id.

“Nonetheless, for an unarticulated medical equivalency finding to be upheld[,] an
ALJ’s decision as a whole ‘must still enable this court to follow the ALJ’s
reasoning in determining that Plaintiff’s impairment is not the medical equivalent

of the listing’ Plaintiff alleges on appeal” and “[i]f it does not, remand is required.”
Izalia V. 2024 WL 4505469, at *5.
There is no listing for migraine headaches. See Soc. Sec. Ruling 19-4p, Titles
II & XVI: Evaluating Cases Involving Primary Headache Disorders, 2019 WL

4169635 (S.S.A. Aug. 26, 2019) (“SSR 19-4p”) (“Primary headache disorder is not
a listed impairment in the Listing of Impairments (listings).”). But “SSR 19-4p
explains how primary headache disorders, like migraines, are evaluated at step

three.” Tyson v. Kijakazi, 1:21-CV-855, 2022 WL 3975002, at *10 (M.D. Pa. July
25, 2022), report and recommendation adopted, 2022 WL 3971041 (M.D. Pa.
Aug. 31, 2022)). SSR 19-4p provides that “a primary headache disorder, alone or

in combination with another impairment(s)” may “medically equal[] a listing.” SSR
19-4p, 2019 WL 4169635 at *7. And it identifies Listing 11.02, which addresses
epilepsy, as “the most closely analogous listed impairment” for a primary headache

disorder. Id. More specifically, SSR 19-p4 provides that “[w]hile uncommon, a
person with a primary headache disorder may exhibit equivalent signs and
limitations to those detailed in listing 11.02 (paragraph B or D for dyscognitive
seizures), and we may find that his or her MDI(s) [medically determinable

impairment(s)] medically equals the listing.” Id. “Thus, an ALJ should look to
Listings 11.02B and 11.02D in assessing whether a claimant’s migraine headache
impairment medically equals a listing.” Tyson, 2022 WL 3975002 at *10.

“Listing 11.02B describes dyscognitive seizures ‘occurring at least once a
week for at least 3 consecutive months . . . despite adherence to prescribed
treatment.’” Falardo-Weller v. Kijakazi, NO. 3:22- CV-01026, 2023 WL 6119101,
*6 (M.D. Pa. Sept. 18, 2023) (quoting 20 C.F.R. Part 404, Subpart P, App.1,

§ 11.02B). “To evaluate whether a primary headache disorder is equal in severity
and duration to the criteria in 11.02B,” the ALJ should consider the following
factors:

[(1)] A detailed description from an AMS [acceptable medical
source] of a typical headache event, including all associated
phenomena (for example, premonitory symptoms, aura,
duration, intensity, and accompanying symptoms); [(2)] the
frequency of headache events; [(3)] adherence to prescribed
treatment; [(4)] side effects of treatment (for example, many
medications used for treating a primary headache disorder can
produce drowsiness, confusion, or inattention); and [(5)]
limitations in functioning that may be associated with the
primary headache disorder or effects of its treatment, such as
interference with activity during the day (for example, the need
for a darkened and quiet room, having to lie down without
moving, a sleep disturbance that affects daytime activities, or
other related needs and limitations).

SSR 19-4P, 2019 WL 4169635 at *7.
Listing 11.02D, on the other hand, “requires dyscognitive seizures occurring
at least once every 2 weeks for at least 3 consecutive months despite adherence to
prescribed treatment, and marked limitation in one” of the following areas:
“[p]hysical functioning; understanding, remembering, or applying information;
interacting with others; concentrating, persisting, or maintaining pace; or adapting
or managing oneself.” Id. In evaluating 11.02D, the ALJ should consider the same
factors—set forth above—for considering 11.02B. Id.

B. The ALJ erred in connection with the analysis of Cottingham’s
headaches.
Cottingham contends that the ALJ failed to adequately adddress Listing
11.02 in accordance with SSR 19-4p. We agree.
The ALJ’s step three analysis regarding Cottingham’s migraine headaches is
cursory: it reads in full:

While there is no specific Listing for migraine headaches, SSR
19-4p provides in pertinent part that a primary headache
disorder may be found to medically equal the requirements of
Section 11.02 of the Listings. However, the evidence of record
does not indicate that an acceptable medical source has opined
that [Cottingham]’s migraine headaches medically equal the
requirements of Section 11.02 of the Listings.
Admin. Tr. at 16.
Cottingham contends that the ALJ failed to adequately consider whether his
migraines are medically equivalent to Listing 11.02 because he failed to address
the factors set forth in SSR 19-4p. And, according to Cottingham, the record
demonstrates that he suffers from debilitating headaches:
Treatment notes reveal Mr. Cottingham started suffering
from debilitating headaches—On July 16, 2018, Mr.
Cottingham reported that he fell two days ago and has had a
headache/nausea and vomiting since, he also could not
remember how he fell. He had a CT scan done and the findings
indicated an aneurysm and subdural hemorrhage and [he] was
given Tylenol, Zofran, and morphine. The following day a
procedure was done to clip and stabilize the aneurysm and
bleeding. He was discharged [t]wo weeks later July 30, 2018.
On July 31, 2018, post brain surgery for intracranial
hemorrhage, Mr. Cottingham reported having a headache near
the incision site and indicated that earlier today he had fainted
and hit his head. Mr. Cottingham was given a CT of his head
and brain without contrast and impressions indicated
Postsurgical changes of right frontotemporal craniotomy and
aneurysm clipping in the right parasailer region, small subdural
collection subjacent to the craniotomy defect noted without
substantial mass effect upon the adjacent brain parenchyma and
new focal hypodensity involving the right caudate and anterior
limb of the right internal capsule, concerning for recent
infarction. On August 1, 2018, Mr. Cottingham had a CTA of
his neck with and without contrast. It indicated post recent
anterior communicating artery aneurysm coiling with newly
diagnosed right basal ganglia st[r]oke.
On August 23, 2018, Mr. Cottingham had another CTA
of his head which revealed broad-based right ACOM junction
aneurysm with a small exophytic cranial extension. On August
27, 2018, Mr. Cottingham reported having a throbbing
headache for the past two days that is all over with pain
radiating down into neck. He also mentions weakness all over
and hallucinations.
In December 2018, Mr. Cottingham reported having
short memory loss, difficulty articulating certain thoughts,
fatigue, and daily migraines. In January 2019, Mr. Cottingham
reaffirmed memory and coordination problems along with his
headaches. He indicated that these headaches occurred 3-4
times a week and that he is feeling very limited in what he can
do. On March 15, 2019, Mr. Cottingham received a CT of his
brain and head. Findings indicated that the right vertebral
artery is hypoplastic in the brain. In April 2019, Mr.
Cottingham had a bilateral carotid duplex ultrasound
completed. Later in the month Mr. Cottingham reported
headaches happening more often in the past month as well as
blurred vision and some photophobia.
In August 2019, Mr. Cottingham continued having short-
term memory problems. He also mentions continuing
headaches with eye pressure and photophobia. In December
2019, Mr. Cottingham reported having increased migraines in
the past 3 weeks. He continued indicating he has photophobia
but says this is essentially always present as well as instances of
dizziness.
. . . In April 2022, Mr. Cottingham indicated that his
headaches have been returning and increasing frequently, he
also has issues with focus, concentration and short-term
memory loss since the aneurysm. He indicated that he gets
headaches almost daily that are around the front and top part of
his incision and feel like pounding and throbbing, as well as can
be debilitating. In May 2022, Mr. Cottingham reported that he
was unable to drive for long due to focus and concentration as
well as increased headaches when doing so. He also described
that someone trying to help him focus and dimly lit rooms make
his headaches worse. Id. In July 2022, Mr. Cottingham
described still being unable to drive for long periods due to
headaches. He also indicated struggling with memory and
focus as well as having worsening vision due to his aneurysm.
. . . On August 25, 2022, Mr. Cottingham reported having
headaches about 5 times a week that never go away completely,
worsened by bright lights, loud sounds, standing, getting up,
stooping down, coughing, sneezing, and smoking. He also
indicated that these headaches are on the front and top of his
head bilaterally and feel like a pulsation. . . . He was reported to
be in moderate distress due to headache. He was prescribed
lisinopril[.]
In September 2022, Mr. Cottingham continued reporting
headaches and indicated he can sometimes see spots in his
vision during these episodes. . . . At a follow-up neurology
appointment in December 2022, Mr. Cottingham reported
continuing headaches and dizzy spells where he loses his
balance as well. He reported that since his aneurysm he has had
headaches, but they are now increasing in intensity and
frequency. He describes these headaches to feel like pounding
and throbbing, as well as that they are worsened by light and
can be debilitating. In January 2023, Mr. Cottingham
reaffirmed headaches and dizziness.
On March 25, 2023, Mr. Cottingham was admitted to the
emergency department with a worsening headache as well as
lightheadedness, dizziness, nausea, and photophobia. He was
given a migraine cocktail . . . [.] He was prescribed Fioricet.
He was discharged the following day.
At the 2023 hearing, Mr. Cottingham testified that since
his July 2018 aneurysm, he suffered from frequent migraines
associated with nausea, light sensitivity, and noise sensitivity.
His migraine could last between one to four migraine headaches
and during a migraine, he needed to lie down in a qui[et] dark
room. Medical expert S. Krishnan, M.D. testified that Mr.
Cottingham’s headaches lasted one to two hours, and that his
headaches “certainly would affect his concentration, pace quite
frequently.”
Doc. 14 at 12–16 (citations to the record omitted).9
Citing SSR 17-2p, the Commissioner contends that the ALJ’s discussion
was sufficient because he addressed Cottingham’s headaches in connection with

his RFC assessment.10 We agree with the Commissioner that we must look to the
ALJ’s decision as a whole, including his discussion in connection with the RFC

9 We note that the scan quality of some of the medical records in this case is
poor, making them very difficult to read. As to those records, here—and
elsewhere—because no party has argued that the other party or the ALJ has
incorrectly cited documents, when the parties or the ALJ cites to those records, we
accept that they say what the parties or the ALJ say that they say. In that vein, we
note that the Commissioner does not dispute the above summary set forth by
Cottingham. Also, although Cottingham sets forth the above summary in one
incredibly long paragraph (spanning five pages of his brief), to enhance readability,
we have broken the above summary into paragraphs.
10 The Commissioner also asserts that the ALJ found that Cottingham “was
not seriously limited in understanding, remembering, or applying information;
interacting with others; concentrating, persisting or maintaining pace; or adapting
or managing oneself.” Doc. 16 at 10. And the Commissioner notes that these areas
of functioning are relevant to Listing 11.02. Id. As the summary of SSR 19-4p set
forth earlier shows, to be medically equivalent to11.02D, a marked limitation is
required in one of the five following areas: “[p]hysical functioning; understanding,
remembering, or applying information; interacting with others; concentrating,
persisting, or maintaining pace; or adapting or managing oneself.” Id. As the
Commissioner asserts, the ALJ did not find a marked limitation in the latter four
areas when he was discussing the paragraph B criteria of other listings. But the
ALJ did not specifically address whether Cottingham has a marked limitation in
“physical functioning” when he addressed the paragraph B criteria because that is
not one of the paragraph B criteria. Thus, we still need to look to the ALJ’s RFC
assessment. Moreover, as set forth in SSR 19-4p, a marked limitation is required
only as 11.02D. Thus, we still need to look to the ALJ’s RFC discussion as to
11.02B.
assessment. But reading the ALJ’s decision as a whole—including his discussion
of Cottingham’s headaches in connection the RFC assessment—we nevertheless

conclude that the ALJ’s step three analysis is beyond meaningful judicial review.
Here, in connection with his RFC assessment, the ALJ acknowledged that
Cottingham testified that he experiences debilitating headaches. Admin. Tr. at 18–

19. But he concluded that Cottingham’s medical records “contain substantial
medical evidence that is not consistent with [his] allegations pertaining to [his]
severe physical limitations. Id. at 19. And the ALJ set forth a summary of the
records that—in his opinion—are not consistent with Cottingham’s assertions. Id.

at 19–20. But that summary includes only two references to Cottingham’s
headaches. Id. at 19–20. First, the ALJ noted that “[d]uring August 2019,
[Cottingham] reported that things were going well overall; [he] reported that his

headaches are significantly improved[.]” Id. at 20. Second, the ALJ noted that in
“March 2020, [Cottingham] reported his migraines are better since he obtained
reading glasses[.]” Id. But the ALJ does not address the myriad other medical
records relating to Cottingham’s headaches. Particularly striking in this regard is

the ALJ’s failure to acknowledge that Cottingham was treated at the emergency
room in March 2023 for a headache. See Admin. Tr. at 1582–1725 (UPMC
emergency room records). Instead of including any discussion—or even

mention—of that treatment in relation to Cottingham’s headaches, the ALJ cherry
picks certain statements from the emergency room record (without acknowledging
that it is an emergency room record) and states as follows: “During March 2023,”

Cottingham “denied experiencing fatigue, weakness, and a gait problem and [he]
was assessed with clinical examination findings of intact extraocular movements,
intact visual fields, and normal finger to nose and heel to shin tests” and

Cottingham “was noted to be alert and oriented times three and [he] was assessed
with clinical examination findings or a normal mood, a normal affect, and normal
behavior.” Id. at 20, 21. Moreover, the ALJ’s discussion does not address the
requirements of Listing 11.02B or 11.02D or the factors set forth in SSR 19-4p.

Although lengthier than his discussion at step three, the ALJ’s discussion of
Cottingham’s headaches in connection with his RFC assessment is similarly
cursory.

In sum, the ALJ’s conclusory step three analysis—even when coupled with
his later RFC assessment—fails to adequately address whether Cottingham’s
migraine headaches are equivalent to Listing 11.02 in accordance with SSR 19-4p,
which “prevents the Court from conducting a meaningful, albeit deferential,

review.” Falardo-Weller, 2023 WL 6119101 at *8, *9 (finding the ALJ’s analysis
regarding step 3 and Listing 11.02 to be deficient, vacating the Commissioner’s
decision, and remanding the case for further proceedings); see also Amy B. v.

Bisignano, No. 1:24-CV-02091, 2026 WL 567656, at *8 (M.D. Pa. Jan. 28, 2026)
(recommending that the Commissioner’s decision be vacated because the ALJ
failed to evaluate on the record the applicability of 11.02B and 11.02D, thus

preventing the court from conducting a meaningful review), report and
recommendation adopted, 2026 WL 565809, at *1 (M.D. Pa. Feb. 27, 2026);
Fewell, 2024 WL 4182115, at *6 (same), report and recommendation adopted,

2024 WL 4173790 (M.D. Pa. Sept. 12, 2024); Tyson, 2022 WL 3975002, at *15
(same), report and recommendation adopted, 2022 WL 3971041 (M.D. Pa. Aug.
31, 2022).
The question then is whether the ALJ’s error was harmless. “Ordinary

harmless error review, in which the appellant bears the burden to demonstrate
harm, is applicable to administrative appeals.” Holloman v. Comm’r Soc. Sec., 639
F. App’x 810, 814 (3d Cir. 2016). Thus, a claimant must explain ‘“how the . . .

error to which he points could have made any difference.’” Id. (quoting Shinseki v.
Sanders, 556 U.S. 396, 413 (2009)). “An error is ‘harmless’ when, despite the
technical correctness of an appellant’s legal contention, there is also ‘no set of
facts’ upon which the appellant could recover.” Brown v. Astrue, 649 F.3d 193,

195 (3d Cir. 2011). Although an error may be harmless, we must be mindful that
“‘[t]he grounds upon which an administrative order must be judged are those upon
which the record discloses that its action was based.’” Fargnoli, 247 F.3d at 44 n.7

(quoting Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 87 (1943)).
As set forth above, Cottingham has presented a lengthy a summary of his
medical records pertaining to his headaches that may support application of the

listing. Given those extensive records, we cannot say that the ALJ’s error was
harmless, and we will vacate the ALJ’s decision.

C. Other Claims.
Given our conclusion that the Commissioner’s decision must be vacated

based on the ALJ’s error at step 3, we will not address Cottingham’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.

D. 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 Cottingham. 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, although Cottingham’s claims have been pending since 2018, given
the remand from the Appeals Council and the multiple hearings, we cannot say, at

this point, that the delay in the litigation of Cottingham’s claims has been
excessive. Moreover, we cannot say that substantial evidence on the record as a
whole shows that he 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11311145. Public record. Not legal advice.