United States District Court, E.D. Pennsylvania
MEMORANDUM AND ORDER
ELIZABETH T. HEY, U.S.M.J.
Rodriguez (“Plaintiff”) seeks review, pursuant to
42 U.S.C. § 405(g), of the Commissioner’s decision
denying her claim for disability insurance benefits
(“DIB”). For the reasons that follow, I conclude
that the decision of the Administrative Law Judge
(“ALJ”) denying benefits is not supported by
substantial evidence and will remand the case for further
proceedings pursuant to sentence four of 42 U.S.C. §
protectively filed her DIB application on October 2, 2014,
see tr. at 139-42, claiming that she became disabled
on July 9, 2014, due to type II diabetes with kidney pain,
degenerative macular edema, neuropathy in the hands, arms and
legs, and hypertension. Tr. at 183. The application
was denied initially, id. at 83-87, and Plaintiff
requested an administrative hearing before an ALJ.
Id. at 88-89. An administrative hearing took place
on May 3, 2017. Id. at 35-71. On May 3, 2017, the
ALJ found that Plaintiff was not disabled. Id. at
12-29. The Appeals Council denied Plaintiff’s request
for review on October 26, 2017, id. at 1-6, making
the ALJ’s May 3, 2017 decision the final decision of
the Commissioner. 20 C.F.R. § 404.981.
commenced this action in federal court on May 7, 2018. Docs.
1 & 2. The matter is now fully briefed and ripe for
review. Docs. 9 & 10.
court’s role on judicial review is to determine whether
the Commissioner’s decision is supported by substantial
evidence. 42 U.S.C. § 405(g); Schaudeck v.
Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir.
1999). Therefore, the issue in this case is whether there is
substantial evidence to support the Commissioner’s
conclusions that Plaintiff is not disabled and can perform
jobs that exist in significant numbers in the national
economy. Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion, ” and must be “more than a
mere scintilla.” Zirnsak v. Colvin, 777 F.2d
607, 610 (3d Cir. 2014) (quoting Rutherford v.
Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). The court
has plenary review of legal issues. Schaudeck, 181
F.3d at 431.
prove 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 has lasted or can be expected
to last for . . . not less than twelve months.” 42
U.S.C. § 423(d)(1). The Commissioner employs a five-step
1. Whether the claimant is currently engaged in substantially
2. If not, whether the claimant has a “severe
impairment” that significantly limits her physical or
mental ability to perform basic work activities;
3. If so, whether based on the medical evidence, the
impairment meets or equals the criteria of an impairment
listed in the listing of impairments
(“Listings”), 20 C.F.R. pt. 404, subpt. P, app.
1, which results in a presumption of disability;
4. If the impairment does not meet or equal the criteria for
a listed impairment, whether, despite the severe impairment,
the claimant has the residual functional capacity
(“RFC”) to perform her past work; and
5. If the claimant cannot perform her past work, then the
final step is to determine whether there is other work in the
national economy that the claimant can perform.
See Zirnsak, 777 F.3d at 610; see also 20
C.F.R. § 404.1520(a)(4). Plaintiff bears the burden of
proof at steps one through four, while the burden shifts to
the Commissioner at the fifth step to establish that the
claimant is capable of performing other jobs in the local and
national economies, in light of her age, education, work
experience, and RFC. See Poulos v. Comm’r of Soc.
Sec., 474 F.3d 88, 92 (3d Cir. 2007).
was born on November 10, 1962, and thus was fifty-one years
of age at the time of her alleged disability onset date (July
9, 2014), and fifty-four at the time of the ALJ’s
decision (May 3, 2017). Tr. at 139, 180. The
Disability Report and initial disability determination
indicate a height of five feet, five inches, and a weight of
174 pounds, but these numbers appear to be overestimates.
Id. at 72, 183. At the time of her administrative
hearing, Plaintiff lived with her husband. Id. at
46. She has three adult children who live on their own, plus
grandchildren. Id. Plaintiff completed two years of
college and has specialized training as a medical technician.
Id. at 184. She has past relevant work as a nurse
aide and store laborer. Id. at 63, 184, 210.
ALJ’s Findings and Plaintiff’s
found that Plaintiff suffered from two severe impairments at
the second step of the sequential evaluation; diabetes
mellitus and disorders of the spine. Tr. at 17. The
ALJ next found that Plaintiff did not have an impairment or
combination of impairments that met the Listings,
id. at 18, and that she retained the RFC to perform
light work except she can lift twenty pounds occasionally and
ten pounds frequently, and can sit, stand, and walk six hours
each in an eight-hour day. Id. at 19. She could
occasionally use the lower extremities for pushing and
pulling or foot controls and occasionally perform postural
maneuvers, must avoid climbing ladders, ropes, scaffolds, and
unprotected heights, and could occasionally use ramps and
stairs. Id. At the fourth step of the evaluation,
the ALJ found that Plaintiff could return to her past
relevant work as a store laborer. Id. at 27.
Alternatively, the ALJ found, based on the testimony of a
vocational expert (“VE”), that Plaintiff could
perform work that exists in significant numbers in the
national economy including jobs such as small product
assembler, inspector, and garment folder. Id. at
27-28. Therefore, the ALJ concluded that Plaintiff was not
under a disability from the application date though the date
of the decision. Id. at 28.
claims that the ALJ’s decision is not supported by
substantial evidence because the ALJ (1) failed to properly
consider the medical opinion evidence, (2) failed to properly
consider Plaintiff’s subjective complaints, and (3)
violated her duty to develop the record. Doc. 9 at 12-23.
Defendant responds that the ALJ properly considered the
medical opinions and Plaintiff’s subjective complaints
and was under no duty to further develop the record, and that
her decision is supported by substantial evidence. Doc. 10 at
of Medical Evidence
4, 2014, Plaintiff was seen at Stauffer Family Practice by
Giles Baker, CRNP, with active problems including
dyslipidemia, esophageal reflux (“GERD”),
hypertension, peripheral neuropathy, and Type II diabetes
mellitus with ophthalmic manifestations, uncontrolled.
Tr. at 251. Plaintiff complained of an increased
burning sensation in her feet, ongoing numbness and tingling,
weight loss, headaches, and insomnia. Tr. at 250-51.
Id. Plaintiff exhibited abnormal reflexes, with
“0” recorded on the right and left patella,
diminished vibratory sensation and position sense in the
toes, and diminished tactile sensation and monofilament
testing throughout both feet. Id. at 253. Mr. Baker
added a trial of nortiptyline, id. at 250, to
Plaintiff’s existing medications, which included
glipizide, lisinopril, NovoLog, omeprazole, insulin pens, and
simvastatin. Id. at 252.
September 22, 2014, Plaintiff sought treatment at St.
Luke’s Hospital emergency room for a burning sensation
and pain in her bilateral feet and legs which had been
progressively worsening for three days. Tr. at 314.
Plaintiff indicated that she was unable to afford her
diabetic medications and had not taken them for a month.
Id. She ambulated on her heels due to foot pain, her
bilateral feet and calves were tender to touch, and
proprioception of the big toes was absent,  and her
neurological exam was otherwise normal with intact cranial
nerves, reflexes, gait, strength, and sensation. Id.
at 316. The attending physician opined that Plaintiff’s
pain was secondary to diabetic neuropathy, and discharged her
with a prescription for a glucose meter and strips so that
she could monitor her glucose at home. Id.
October 31, 2014, Plaintiff returned to the St. Luke’s
emergency department with complaints of worsening lower back
pain that radiated into her right leg. Tr. at 325.
Plaintiff indicated that she was unable to receive
medications and follow-up care due to a lack of insurance.
Id. at 332. Plaintiff could not ambulate normally
due to radiating pain, and a straight-leg test was positive.
Id. at 326, 327. She had normal pedal pulses and good
lower extremity strength. Id. at 326. Plaintiff was
discharged with diagnoses of chronic back pain and sciatica.
Id. at 330-31.
November 20, 2014, Plaintiff returned to St. Luke’s for
an outpatient clinic follow-up. Tr. at 304-08.
Plaintiff reported that her sciatica was progressively
getting worse, she had a left foot wound attributed to
diabetic neuropathy, and she was not taking her diabetic
medication due to financial constraints. Id. at 304.
She exhibited decreased bilateral reflexes and sensation in
her feet. Id. at 307. The physician discontinued
glipizide, metformin, and NovoLog, and started Plaintiff on
Novolin R for diabetes, gabapentin for peripheral neuropathy,
and tramadol for sciatica. Id. at 304. Four days later,
Plaintiff sought emergency treatment for blisters on the toes
of her left foot, with complaints of chronic neuropathy and
ongoing sciatica which caused her to favor her left side when
ambulating. Id. at 335-37.
January 12, 2015, Plaintiff returned to the emergency
department again for worsening leg pain. Tr. at
770-73, 1036-52. She stated that she had been unable to see
her primary care provider because she lost her insurance.
Id. During a visit to Bethlehem Family Practice
three days later, Plaintiff complained of back pain radiating
into her pelvis and right leg. Id. at 1670. At a
follow-up on January 23, 2015, she was prescribed Lidoderm
patch, Norco5, and gabapentin. Id. at
February 5, 2015, Irene Cherfas, M.D., performed an
ophthalmologic consultative examination. Tr. at
354-55. Dr. Cherfas diagnosed diabetic retinopathy in both
eyes, and noted that Plaintiff had cataracts in both eyes
which required no intervention. Id. at 354. In a
further notation dated February 10, 2015, Dr. Cherfas opined
that Plaintiff’s visual acuity did not render her
legally blind or prohibit her from driving, and that she was
employable from a visual perspective.
February 12, 2015, Plaintiff received treatment from Gregory
Bentzinger, D.P.M., a podiatrist, for complaints of
difficulty walking due to diabetic foot complications.
Tr. at 427-28. He removed a callus, and on
examination found weakened pulses and decreased sensation to
pressure, touch, and vibration. Id. at 427. During
follow-up appointments with Dr. Bentzinger in February and
March 2015, Plaintiff continued to report pain on ambulation.
Id. at 425, 426. The doctor provided Plaintiff
diabetic insoles on February ...