United States District Court, M.D. Pennsylvania
TREVOR E. HYND, Plaintiff
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant
REPORT AND RECOMMENDATION
C. Carlson United States Magistrate Judge
Social Security Appeal, we are called upon to review the
sufficiency of an Administrative Law Judge's (ALJ)
assessment of the sole medical opinion in the record, that of
a treating physician. We are asked to conduct this evaluation
in the case of Trevor Hynd (“Mr. Hynd”), an
individual who suffers from degenerative disc disease and
fibromyalgia. (Tr. 31.) We undertake this review in a factual
context in which the ALJ explained that the treating
source's opinion was “given weight to the extent it
is consistent with the objective radiographic and monthly
examination findings.” (Tr. 40.) While it is not
entirely clear from this cursory description what the basis
was for the ALJ's decision to largely reject the treating
source's opinion, the ALJ's assertions that a finding
of disability was “not supported by the record as a
whole” appears to be at odds in some material ways with
the factual record, which documents a prolonged history of
progressive pain associated with these impairments. Thus, in
the instant case we are presented with an ALJ's decision
to reject a treating source opinion which appears to be the
only medical opinion on the record, and was the sole medical
opinion considered by the ALJ. Since the medical record
provides support for the treating source's opinion, and
the ALJ's decision to discount this opinion in the
absence of any other medical source opinion is not
sufficiently supported, it is recommended that this case be
remanded to the Commissioner for further proceedings.
Statement of Facts and of the Case
Hynd's health ailments related to his disability claims
began in late 2009. (Tr. 296.) Mr. Hynd was uncertain what
initially caused his back pain, and he reported that the pain
originated in his back, shoulder, and neck and radiates into
his arms and legs. (Id.) On July 17, 2013, Mr. Hynd
protectively filed an application for disability benefits
under Title II of the Social Security Act. (Tr. 215-216.) Two
months later, Mr. Hynd filed an application for supplemental
security income benefits under Title XVI of the Social
Security Act. (Tr. 217-225.) Mr. Hynd claimed that he has
been disabled since March 15, 2013, because of degenerative
disc disease and fibromyalgia. (Tr. 268; 271.) At the time of
Mr. Hynd's applications, and the onset of his alleged
disability, he was in his early 30's and was considered a
“younger individual” according to the regulations
promulgated under the authority of the Act. (Tr. 268.) Mr.
Hynd is a high school graduate and attended one year of
college. (Tr. 272.) His work history report includes
employment spanning from 2001 through 2013, in which he
worked in various positions in the retail sector, as well as
positions in food service, telemarketing, and the military.
Hynd's disability applications were initially denied on
October 17, 2013, (Tr. 102-110) and November 1, 2013, he
sought a hearing to contest the denials. (Tr. 114-116.) On
June 6, 2015, the ALJ conducted a hearing considering Mr.
Hynd's disability applications. (Tr. 48-81.) At this
hearing, the ALJ heard testimony from Mr. Hynd, Mr.
Hynd's wife, and Michael Kibbler, an impartial vocational
expert. (Id.) Mr. Hynd testified that he is disabled
because of his pain condition. (Tr. 54.) He explained that
his daily pain limits almost all activity, and he cannot keep
a reliable schedule because the pain is unpredictable.
(Id.) Mr. Hynd reported that approximately two to
three times per week, his pain is so unbearable that he
cannot get out of bed. (Tr. 55.) He explained that there are
times when he awakens with pain for no particular reason.
(Tr. 67.) Mr. Hynd reported that he can only sit in one
position for up to an hour, because sitting too long
precipitates the pain and causes pain and numbness throughout
his legs. (Tr. 59-60.) He explained that he can comfortably
lift up to five pounds only. (Tr. 60.) The ALJ also received
and reviewed an abundance of medical records from multiple
medical sources (Tr. 377-724), and had the benefit of an
opinion from treating physician Dr. Upadhyay. (Tr. 717-724.)
Dr. Upadhyay concluded that Mr. Hynd's impairments
restrict him from prolonged sitting, standing, and walking,
as well as restrict him from lifting, pushing, and carrying.
(Tr. 717.) Dr. Upadhyay opined that Mr. Hynd's condition
will slowly worsen as he gets older. (Id.) Dr.
Upadhyay determined that Mr. Hynd can: stand/walk for one
half hour at a time, and for a total of two hours in an
eight-hour work day; sit for one hour at a time, and for a
total of five hours in an eight-hour work day; and drive a
vehicle for up to one half hour at a time, and for a total of
one hour in an eight-hour work day. (Tr. 719-720.) Dr.
Upadhyay assessed that Mr. Hynd can lift/carry up to ten
pounds occasionally. (Id.) Ultimately, Dr. Upadhyay
opined that Mr. Hynd is limited to less than sedentary work
and is not physically capable of working an eight-hour work
day five days per week. (Tr. 723; 724.)
the hearing, on August 27, 2015, the ALJ issued a decision
denying Mr. Hynd's applications for disability benefits.
(Tr. 26-47.) In this decision, the ALJ first found that Mr.
Hynd met the insured requirements of the Act through December
31, 2017. (Tr. 31.) At Step 2 of the five-step sequential
analysis process that applies to Social Security disability
claims, the ALJ concluded that Mr. Hynd experienced the
following severe impairments: degenerative disc disease and
fibromyalgia. (Id.) At Step 3 of this sequential
analysis, the ALJ concluded that none of Mr. Hynd's
impairments met a listing that would define him as per
se disabled. (Tr. 32.)
considering Step 4, the ALJ fashioned Mr. Hynd's residual
functional capacity. The ALJ concluded that Mr. Hynd is able
to perform a range of sedentary work with limitations. (Tr.
33.) Specifically, the ALJ determined that Mr. Hynd can only
lift up to ten pounds occasionally, stand and/or walk up to
two hours in an eight-hour work day, sit up to six hours in
an eight-hour work day, and sit and stand every hour at will.
(Id.) The ALJ added the limitation that the work
should be routine and repetitive and performed in an
environment free of fast-paced production requirements.
reaching this conclusion, the ALJ partially discounted Mr.
Hynd's statements concerning the intensity, persistence,
and limiting effects of his symptoms, noting that his
conditions have not warranted surgery, he has no problems
with sleep despite his significant levels of pain, and pain
medication and sitting alleviated his pain. (Tr. 34; 39.) The
ALJ then canvassed the clinical, diagnostic, and medical
opinion evidence before concluding that Mr. Hynd retained the
residual functional capacity to perform a range of sedentary
work, with the above discussed limitations. (Id.)
Having made these findings, the ALJ concluded, consistent
with the testimony of the vocational expert that Mr. Hynd
could return to his past relevant work as an order clerk and
telephone solicitor. (Tr. 41.)
moved on to Step Five, though not necessary, noting that she
made these findings in the alternative. (Tr. 41.) The ALJ
found that based on the above discussed RFC, and considering
Mr. Hynd's age, education, work experience, and residual
functional capacity, jobs existed in significant numbers in
the national economy that Mr. Hynd could perform.
(Id.) The ALJ explained that if Mr. Hynd had the RFC
to perform the full range of sedentary work, a finding of
“not disabled” would be directed by
Medical-Vocational Rule 201.28, but because Mr. Hynd is
impeded by additional limitations, the ALJ relied upon
testimony from the vocational expert to determine if these
limitations eroded the unskilled sedentary occupational base.
(Tr. 42.) Based upon the vocational expert's testimony,
the ALJ determined Mr. Hynd is able to perform the following
unskilled in nature and sedentary exertion occupations: table
worker and final assembler. (Id.)
The ALJ determined that pursuant to the guidelines set forth
in SSR 00-4p, the vocational expert's testimony was
consistent with the information published in the DOT.
(Id.) However, the ALJ noted that the DOT does not
address the sit/stand option, and that the vocational expert
identified jobs allowing that accommodation based upon his
experience and observations working in the field.
(Id.) Ultimately, the ALJ found Mr. Hynd not
exhausted his administrative remedies with respect to this
adverse decision, Mr. Hynd filed the instant appeal. (Doc.
1.) On appeal, Mr. Hynd argues that the ALJ's decision is
not supported by substantial evidence, and is arbitrary and
capricious. (Doc. 1 p. 3.) He alleges that the ALJ applied
incorrect legal standards. (Id.) This case is fully
briefed and is now ripe for resolution.
Substantial Evidence Review - the Role of this
reviewing the Commissioner's final decision denying a
claimant's application for benefits, this Court's
review is limited to the question of whether the findings of
the final decision-maker are supported by substantial
evidence in the record. See 42 U.S.C. §405(g);
Johnson v. Comm'r. of Soc. Sec., 529 F.3d 198,
200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d
533, 536 (M.D.Pa. 2012). Substantial evidence “does not
mean a large or considerable amount of evidence, but rather
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). Substantial
evidence is less than a preponderance of the evidence but
more than a mere scintilla. Richardson v. Perales,
402 U.S. 389, 401 (1971). A single piece of evidence is not
substantial evidence if the ALJ ignores countervailing
evidence or fails to resolve a conflict created by the
evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d
Cir. 1993). But in an adequately developed factual record,
substantial evidence may be “something less than the
weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent
[the ALJ's decision] from being supported by substantial
evidence.” Consolo v. Fed. Maritime
Comm'n, 383 U.S. 607, 620 (1966). “In
determining if the Commissioner's decision is supported
by substantial evidence the court must scrutinize the record
as a whole.” Leslie v. Barnhart, 304 F.Supp.2d
623, 627 (M.D.Pa. 2003). The question before this Court,
therefore, is not whether Mr. Hynd is disabled, but whether
the Commissioner's finding that he is not disabled is
supported by substantial evidence and was reached based upon
a correct application of the relevant law. See Arnold v.
Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1
(M.D.Pa. Mar. 11, 2014)(“[I]t has been held that an
ALJ's errors of law denote a lack of substantial
evidence.”)(alterations omitted); Burton v.
Schweiker, 512 F.Supp. 913, 914 (W.D.Pa.
1981)(“The Secretary's determination as to the
status of a claim requires the correct application of the law
to the facts.”); see also Wright v. Sullivan,
900 F.2d 675, 678 (3d Cir. 1990)(noting that the scope of
review on legal matters is plenary); Ficca, 901
F.Supp.2d at 536 (“[T]he court has plenary review of
all legal issues . . . .”).
Initial Burdens of Proof, Persuasion, and Articulation
for the ALJ
receive benefits under the Social Security Act by reason of
disability, a claimant must demonstrate an inability to
“engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. §423(d)(1)(A); 42
U.S.C. §1382c(a)(3)(A); see also 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 activity that exists in
the national economy. 42 U.S.C. §423(d)(2)(A); 42 U.S.C.
§1382c(a)(3)(B); 20 C.F.R. §§404.1505(a),
416.905(a). To receive benefits under Title II of the Social
Security Act, a claimant must show that he or she contributed
to the insurance program, is under retirement age, and became
disabled prior to the date on which he or she was last
insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
making this determination at the administrative level, the
ALJ follows a five-step sequential evaluation process. 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),
Steps 3 and 4, the ALJ must also assess a claimant's RFC.
RFC is defined as “that which an individual is still
able to do despite the limitations caused by his or her
impairment(s).” Burnett v. Comm'r of Soc.
Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations
omitted); see also 20 C.F.R.
§§404.1520(e), 404.1545(a)(1), 416.920(e),
416.945(a)(1). In making this assessment, the ALJ considers
all of the claimant's medically determinable impairments,
including any non-severe impairments identified by the ALJ at
step two of his or her analysis. 20 C.F.R.
is an undeniable medical aspect to an RFC determination,
since that determination entails an assessment of what work
the claimant can do given the physical limitations that the
claimant experiences. Yet, when considering the role and
necessity of medical opinion evidence in making this
determination, courts have followed several different paths.
Some courts emphasize the importance of medical opinion
support for an RFC determination and have suggested that
“[r]arely can a decision be made regarding a
claimant's residual functional capacity without an
assessment from a physician regarding the functional
abilities of the claimant.” Biller v. Acting
Comm'r of Soc. Sec.,962 F.Supp.2d 761, 778-79 (W.D.
Pa. 2013) (quoting Gormont v. Astrue, Civ. No.
11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013)). In
other instances, it has been held that: “There is no
legal requirement that a physician have made the particular
findings that an ALJ adopts in the course of determining an
RFC.” Titterington v. Barnhart, 174 Fed.Appx.
6, 11 (3d Cir. 2006). Further, courts have held in cases