United States District Court, E.D. Pennsylvania
MEMORANDUM AND ORDER
ELIZABETH T. HEY, U.S.M.J.
Colon (“Plaintiff”) seeks review of the
Commissioner’s decision denying his claims for
disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). 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. § 405(g).
protectively filed for DIB and SSI on February 19, 2015,
claiming that he became disabled on December 12, 2012, due to
depression, fibromyalgia, left shoulder rotator cuff tear,
tendonitis, impingement, cervical degenerative disc disease
(“DDD”) with radiculopathy, bilateral carpal
tunnel syndrome (“CTS”), diabetes mellitus,
asthma, sleep disturbance, bilateral hip paresthesia, and
bicep muscle tear. Tr. at 115, 116, 218, 225,
The applications were denied initially, id. 121-25,
126-30, and Plaintiff requested an administrative hearing
before an ALJ, id. at 131, which took place on March
23, 2017. Id. at 35-88. On August 8, 2017, the ALJ
found that Plaintiff was not disabled. Id. at 19-30.
The Appeals Council denied Plaintiff’s request for
review on September 14, 2018, id. at 1-3, making the
ALJ’s August 8, 2017 decision the final decision of the
Commissioner. 20 C.F.R. §§ 404.981, 416.1472.
commenced this action in federal court on November 5, 2018.
Doc. 1. The matter is now fully briefed and ripe for review.
Docs. 15, 17-18.
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 his 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 his past work; and
5. If the claimant cannot perform his 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 v. Colvin, 777 F.3d 607, 610 (3d Cir.
2014); see also 20 C.F.R. §§
404.1520(a)(4), 416.920(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 his age, education, work
experience, and RFC. See Poulos v. Comm’r of Soc.
Sec., 474 F.3d 88, 92 (3d Cir. 2007).
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 is capable of performing 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, 777 F.2d at 610 (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.
ALJ’s Findings and Plaintiff’s
found that Plaintiff suffered from several severe impairments
at the second step of the sequential evaluation; cervical and
lumbar DDD, bilateral hip degenerative joint disease, CTS,
left shoulder rotator cuff tear, depression, and
post-traumatic stress disorder (“PTSD”).
Tr. at 21. The ALJ found that Plaintiff did not have
an impairment or combination of impairments that met the
Listings, id. at 22, and that Plaintiff retained the
RFC to perform light work with the abilities to sit for six
hours, stand for four hours, and walk for four hours during
the workday; frequently operate bilateral foot controls;
occasionally climb ramps and stairs, balance, stoop, crouch,
and reach with his non-dominant upper left extremity; never
kneel, crawl, or climb ladders, ropes, or scaffolds; avoid
all exposure to unprotected heights or moving mechanical
parts; with a limitation to perform simple, routine,
repetitive tasks involving no more than occasional
interaction with the public and no more than few workplace
changes; with no ability to work at a production rate pace or
meet strict quota requirements, but able to meet all
end-of-day goals. Id. at 23. At the fourth step of
the evaluation, the ALJ found that Plaintiff could not
perform his past relevant work as a maintenance supervisor or
a store laborer. Id. at 28. However, at the fifth
step, 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 as an agricultural produce sorter and conveyor
line bakery worker. Id. at 29.
claims that the ALJ (1) failed to properly consider the
opinions of treating physician Erica Coulter, M.D., and
consultative examiner Roger Boatwright, M.D., (2) failed to
adequately explain his finding that Plaintiff did not
medically equal the Listings, (3) failed to explain his
implicit rejection of testimony from lay witness Sally Ortiz,
and (4) unreasonably relied on VE testimony. Doc. 14 at 4-17.
Defendant responds that the ALJ properly considered the
medical opinions and evidence and substantial evidence
supports the ALJ’s decision. Doc. 17 at 16-30. In his
reply brief, Plaintiff reiterates the arguments in his
opening brief. Doc. 18.
Summary of Medical Evidence
notes in the record from Plaintiff’s primary care
physician, Erica L. Coulter, M.D., begin in November 2013,
when she was treating Plaintiff for atypical chest pain for
which the doctor recommended a stress test; type II diabetes
mellitus for which he was prescribed Lantus Solostar and
Apidra Solastar and participated in a diabetes group; CTS
of the right hand for which she referred him to an
orthopedist; chronic left shoulder pain for which
chiropractic treatment had offered limited improvement;
hypertension for which he took lisinopril; and arthralgias
due to depression, fibromyalgia,  and osteoarthritis.
Tr. at 907-08. In January 2014, Dr. Coulter
recommended Plaintiff consult with an orthopedist regarding
his left shoulder pain because an MRI showed diffuse
tendonosis of the rotator cuff. Id. at 897. Also in
January 2014, Plaintiff complained of increased bilateral hip
pain for which Dr. Coulter prescribed Tylenol with codeine.
Id. at 891.
February 21, 2014, following a three-year history of neck and
left shoulder, arm, and hand pain, Plaintiff underwent a left
carpal tunnel release and left shoulder
arthroscopy. Tr. at 339, 361. During the
arthroscopy, Paul F. Carroll, M.D., of Orthopedic Associates
of Lancaster (“OAL”), also performed a biceps
tenotomy and subacromial decompression. Id.
at 361-63. Three months after the surgery, Dr. Carroll noted
that Plaintiff’s sensation in the area was intact, he
had a negative Tinel’s sign in the left wrist,
had full range of motion of the fingers and wrist, was
nontender to palpation over the shoulder, had full range of
motion without pain in the shoulder with no impingement
signs, and had excellent rotator cuff strength. Id.
at 391-92. The concurrent physical therapy records also
evidence significant improvement after surgery. See
id. at 1039-40 (6/30/14 – discharge notes).
Coulter continued to treat Plaintiff during the same period
of his treatment with Dr. Carroll. On May 13, 2014, Dr.
Coulter noted that Plaintiff’s shoulder pain was
improving with physical therapy after surgery and he was no
longer taking pain medication. Tr. at 873.
began treatment with Thomas Ring, M.D., at OAL for bilateral
hip pain in August of 2014. Tr. at 398-401. The
following month, Dr. Ring reviewed an MRI of
Plaintiff’s pelvis performed on September 4, 2014,
which showed degenerative changes of the bilateral hip joints
and the bilateral sacroiliac (“SI”) joints.
Id. at 408. He referred Plaintiff to pain management
specialist Jeffrey Conly, M.D., id., who performed
two SI joint steroid injections on September 18, 2014.
Id. at 426. The following month, Plaintiff
complained of worsening hip pain with walking and extended
periods of sitting. Id. at 427. An MRI performed on
October 10, 2014, revealed no herniation or stenosis, but
“a mild annular bulge at ¶ 3-L4 and less so at
¶ 4-L5, ” id. at 437, 680, and Plaintiff
was referred for physical therapy. Id. at 437. In
October 2014, Dr. Coulter noted that Plaintiff had been
diagnosed with sacroiliitis and was “doing better after
injections.” Id. at 867.
October 31, 2014, Plaintiff began complaining of vertigo and
tension headaches, for which Dr. Coulter prescribed Zofran
and meclizine and added benign positional vertigo
treatment to his physical therapy plan. Tr. at
861. In February 2015, the doctor noted
Plaintiff’s complaints of intermittent paresthesia in
his legs causing his legs to buckle from weakness and pain
for which Dr. Coulter wanted an EMG of his legs and was
considering a referral to Dr. Conly. Id. at 848.
2015, Plaintiff returned to Dr. Conly, complaining of
worsening pain in the prior few weeks for which Dr. Conly
recommended medial and lateral branch block injections at
¶ 5, S1, and S2, tr. at 1060, which were
performed on June 24, 2015. Id. at 1065. The records
indicate that these injections provided complete relief for a
week and a half, after which the pain returned. Id.
at 1061, 1065. Dr. Conly referred Plaintiff to orthopedic
surgeon Carl Adolph, M.D. Id. at 1064.
August 18, 2015, Dr. Adolph performed a left SI joint fusion.
See tr. at 1074. X-rays performed on January 22,
2016 showed a stable instrumented left SI joint fusion.
Id. at 1143. On the same date, physician’s
assistant Christina Bulley noted that Plaintiff “ha[d]
no complaints for his left SI joint, ” but he
complained of pain in his right SI joint. Id. at
1144. On February 9, 2016, Dr. Adolph performed a right SI
joint fusion. Id. at 1152. Follow up X-rays showed
the bilateral SI joint fusions had “no evidence of any
complications.” Id. at 1154, 1155. Thirteen
days after surgery, Plaintiff reported a “constant
sharp pain that radiate[d] over the posterior aspect of the
leg to his foot, ” and increased pain with walking,
sitting, and laying down. Id. at 1156.
March 21, 2016, Plaintiff reported to Dr. Adolph that his
lower leg pain was gone, and that he had mild discomfort in
the posterior right “glute” area but did not need
any prescription or over-the-counter pain medications.
Tr. at 1159. On May 27, 2016, Plaintiff complained
of “some pain at times if he stands for long periods or
walks long distance, ” and occasional discomfort in his
right buttock and weakness in his shoulder. Id. at
1163. On examination, the doctor noted deconditioning, but no
significant limp, and weakness in the left arm around the
shoulder girdle. Id. at 1165.
saw Dr. Carroll again on November 16, 2015, complaining of
pain and locking in his right index and ring fingers and his
left index and middle fingers, for which Dr. Carroll
performed cortisone injections on the left
hand. Tr. at 1131-32. On December 17,
2015, physician assistant (“PA”) Rene Battista
indicated that Plaintiff had no improvement in the symptoms
of his left hand and orthopedic surgeon Vincent Battista,
M.D., noted triggering in the two fingers on the left hand
and in Plaintiff’s right ring finger. Id. at
1137, 1138. Dr. Battista performed release surgery on
Plaintiff’s left index and middle fingers and on his
right ring finger. Id. at 1141, 1142, 1171-72
(12/29/15 - operative report, left middle and index fingers),
1169 (1/8/16 - operative report, right ring finger). Three
weeks later, Dr. Battista noted that Plaintiff was
progressing well with no numbness or tingling, but did
complain of pain in his right ring finger and left middle
finger and mild difficulty with flexion in both hands.
Id. at 1142. On February 29, 2016, PA Battista noted
that Plaintiff had stiffness but no pain in both hands and
normal strength in both hands. Id. at 1158.
October 6, 2016, during a recheck of his earlier trigger
finger releases, Plaintiff complained to Dr. Battista of pain
and an inability to fully flex his left ring finger and thumb
and his right middle finger. Tr. at 1176. On
examination, Dr. Battista noted triggering of these three
fingers. Id. at 1178. On October 11, 2016, Dr.
Battista performed release surgery on the left ring finger
and thumb, and a steroid injection of the right middle
finger. Id. at 1167, 1181. Plaintiff’s left
hand was doing “nicely” at his follow up
appointment on December 1, 2016, and Plaintiff was preparing
for release surgery for the right index and middle fingers,
which was completed on December 16, 2016. Id. at
1181-82, 1183. Plaintiff was “doing well” at his
follow up appointment on December 29, 2016. Id. at
addition to the issues with his shoulder, hips, and hands,
Plaintiff was admitted to Lancaster General Hospital on June
4, 2016, with complaints of dizziness and edema. Tr.
at 1423. On discharge, he was diagnosed with chronic kidney
disease. Id. Renal function improved during the
course of his two-day admission. Id.
Boatwright, M.D., conducted an examination at the request of
the Administration on June 8, 2015. Tr. at 946-50.
Dr. Boatwright noted that, although Plaintiff’s gait
was normal, he was unable to walk on heels and toes, and
could perform only a half-squat due to his low back and hip
pain. Id. at 948. On examination, the doctor found
tenderness in both SI joints and from L1 to L5. Id.
The doctor diagnosed Plaintiff with depression, fibromyalgia,
type 2 diabetes, asthma, sleep apnea, hypercholesterolemia,
hypertension, history of left shoulder rotator cuff tear,
bilateral hip paresthesias, and bilateral CTS. Id.
at 949. In an attached range of motion chart, the doctor
indicated limited range of motion of the lumbar spine.
Id. at 958.
Boatwright also completed a Medical Source Statement of
Ability to do Work-Related Activities, finding Plaintiff
could frequently lift twenty pounds and occasionally carry
twenty pounds. Tr. at 951. The doctor also found
that Plaintiff could sit for four hours (thirty minutes at
one time), and stand and walk for two hours each (ten minutes
at a time) in an eight-hour day. Id. at 952. Dr.
Boatwright found Plaintiff was limited to occasional use of
his left hand to reach, handle, finger, feel, and push/pull.
Id. at 953.
primary care physician, Dr. Coulter, completed a Medical
Source Statement of Ability to do Work-Related Activities
regarding Plaintiff’s physical impairments on April 7,
2017, finding that Plaintiff could occasionally lift and
carry up to twenty pounds, frequently reach with either hand,
occasionally reach overhead with either hand, never handle,
finger, feel, or push/pull with either hand, and occasionally
use foot controls, climb stairs and ramps, and crawl.
Id. at 1346-48. The doctor indicated that
Plaintiff’s use of a cane was medically necessary.
Id. at 1347.
began mental health treatment at Community Services Group
(“CSG”) on October 4, 2013, at which time Lillian
Pacheco, M.Ed., diagnosed Plaintiff with major depressive
disorder (“MDD”), single episode,
mild and PTSD.Tr. at 830. On
October 13, 2013, psychiatrist Hector Diaz, M.D., concurred
in the diagnoses, noting a history of chronic depression and
trauma, and found that Plaintiff had a Global Assessment of
Functioning (“GAF”) score of 55.Id.
at 1215-17. On mental status exam (“MSE”), the
doctor indicated that Plaintiff was in “mild to
moderate distress” and tearful at times, his affect was
restricted, and he had “fairly good insight” and
sound judgment. Id. at 1216. On October 16, 2013,
the doctor recommended increasing tricyclic antidepressants
(at the time Plaintiff was taking amitriptyline) and
replacing trazodone with mirtazapine.Id.
at 816. Two weeks later, the doctor noted that Plaintiff