Honorable Richard P. Conaboy, United States District Judge
I. Procedural Background.
We consider here Plaintiff's appeal from an adverse decision of the Social Security Administration. ("Agency") or ("SSA"). The Agency initially denied Plaintiff's application for disability insurance benefits ("DIB") by decision of ALJ Michele Stolls dated May 19, 2011. The Agency's decision became a "final decision" pursuant to 42 U.S.C. § 405(g) when the Appeals Council denied Plaintiff's request for review on July 20, 2012. Plaintiff filed a timely appeal to this Court on September 19, 2012 and this Court ultimately remanded this case to the SSA for further proceedings on April 29, 2014.
II. Testimony Before the ALJ.
1. Hearing of April 19, 2011.
The testimony may be summarized as follows. Plaintiff was 46 years of age on the date of the hearing. She was then 5'5" tall and weighed 255 pounds. She lived with her fiancee and her children in East Stroudsburg, Pennsylvania. Her only source of income was from a Workman's Compensation award. She had last worked for the New York City Transit Authority and had stopped working when she suffered an accident on the job on August 30, 2008. (R.593-94).
Her children were then 18 and 19 years of age respectively and she described them as "pretty self-sufficient" and stated further that they help her around the house. She drives and denied that she attended religious services or indulged in any hobbies. The only time she has taken a trip since she has stopped working was when she went to "Carolina" for her son-in-law's funeral. She made that trip by Amtrak. (R.594-95).
Plaintiff indicated that she had two years of college education and no military service. She stated that she cannot work for multiple reasons including: irritable bowel syndrome; hip pain; migraine headaches; asthma; and depression. She takes Percoset for pain. Her migraines had been a sporadic problem but after her debilitating accident of August 30, 2008 they became a more serious problem. Light and loud noise seem to trigger her migraines. (R.596-98).
Plaintiff stated that she does nothing on a daily basis and that a girlfriend helps her
Plaintiff had last worked as a train operator for the New York City Transit System. While doing that job on August 30, 2008 she slipped while walking through the train and hurt her back. She had worked in various capacities for the New York City Transit System for approximately 19 years before her injury. She describes her back pain as "excruciating" and states that she suffers from frequent muscle spasms that move from her left hip around her back and down her left leg. At times her left leg gives way entirely. The pain, particularly the pain in her left hip, makes it very difficult for her to sleep at night. When she is sitting down she must get up every 15 minutes and change position for a few minutes to alleviate the pain in her left hip. She alternates between Vicodin and Tramadol to blunt her hip pain. Both these medications make her drowsy. She takes these medications as needed and uses them to some extent everyday. (R.601-06).
Also testifying at the Plaintiff's hearing was a Vocational Expert, Gerald W. Keating. The ALJ posed three separate hypothetical questions to Mr. Keating. Mr. Keating was asked to consider an individual whose RFC permitted sedentary work, limited by the ability to be able to sit and stand at will, limited to occupations that require only occasional balancing, stooping, crawling, kneeling, crouching, climbing on ramps or stairs, no exposure to climbing ladders, ropes and scaffolds, no pushing and pulling of the lower left extremity, avoidance of concentrated and prolonged exposure to fumes, odors, dust, gases, chemical irritants, environments with poor ventilation, cold temperature extremes, excessive noise, excessive vibration, extreme dampness or humidity, and occupations which include dangerous machinery or heights, or occupations which require more than the performance of simple, routine tasks not performed in a fast-paced production environment. Mr. Keating testified that, as representative samples, such an individual could perform the positions of small products assembler, telephone receptionist, or telephone solicitor, non-sales.
The ALJ's second hypothetical question asked Mr. Keating to consider that the individual already described had additional restrictions of no more than occasional overhead reaching, pulling, or pushing with the upper extremities to include the operation of hand levers and overhead work. Mr. Keating stated that even with these additional limitations the jobs he had previously identified could be performed by such an individual.
Finally, the ALJ asked Mr. Keating to consider all limitations already identified in the two previous hypothetical questions and to also assume that the hypothetical individual would be off task for more than 30 per cent of the workday due to chronic back and lower extremity pain, plus migraine headaches and neck pain. When these additional restrictions were added to the hypothetical question, Mr. Keating testified that such an individual could not function in any work environment.
2. Hearing of September 4, 2014.
Plaintiff's testimony may be summarized as follows. She still holds a driver's license but drives infrequently. She has made only
In October of 2013 Plaintiff was driving in rainy conditions and she lost control of her vehicle. This caused her to run into the guardrail and then reenter the road. Upon reentering the road, her vehicle was struck by a large truck. She has not instituted any legal action as a result of that accident. (R.620-21).
She testified that she is under treatment from Dr. Krishna, a physician in New York. When asked why she had not sought a doctor in Pennsylvania she replied that Dr. Krishna had been treating her since her work-related accident in 2008 and she chose to remain his patient. She has elected not to undergo surgery for her back injury because she is afraid. Her back symptoms are more troubling than her neck symptoms. However, her neck symptoms have not improved. (R.621-623). Plaintiff changed the medication for her rheumatoid arthritis because the medication she tried first was making her sick and causing her hair to fall out. She has not worked since August of 2008. She and her husband survive on her Workman's Compensation check and her husband's retirement. (R.623).
Plaintiff indicated on a function report in March of 2010 that she cooked and did dishes to some extent dependant upon her pain level. At that time, she was still driving, handling money, shopping, socializing on the telephone, and using a cane. At the time of her second hearing her children, who are now 19 and 21 years of age, do the majority of the housework. She estimates that she may be able to stay on her feet for as much as one hour dependent on her pain level. She must be careful because her knees give out at times and she has fallen on steps three times as a result. Both knees hurt but her right knee is more problematic. She can sit still for as much as one-half hour but that, too, depends upon her level of back pain. When the pain is bad she must move around more often. (R.623-24). She believes that the most she can lift or carry would be five to ten pounds. Her lifting capacity also varies dependent upon the way her right shoulder and right elbow feel. She has undergone surgery on both her right elbow and right shoulder and believes that she is deteriorating in both locations. She takes various pain medications including Flexeril and uses Topomax for her migraine headaches. She also takes Protonix for her irritable bowel syndrome. She has at times used Vicodin, Percoset and Dilaudid for pain. Percoset makes her nauseous and she uses Dilaudid only when her pain is excruciating. (R.625-26).
Plaintiff's pain is so bad on three to four days each month that she does not get out of bed. Her back pain radiates down her legs at times. Every night is a battle for sleep because her pain does not permit her to get sustained rest. At times her shoulder aches so much that it affects her neck and she thinks this causes her migraines. She had migraine headaches approximately three times a week and these are so severe that she must sit in total darkness when one comes upon her. (R.627).
Plaintiff states that she takes Buspar for anxiety. Dr. Krishna prescribed Buspar and she had been taking it for about one year. She also uses a knee brace, a back brace, and a boot-like device to keep her left foot in a certain position to alleviate plantar fascitis in her left foot. A Dr. Parnes prescribed her cane about two years earlier. She uses Ambien to help her sleep. The Ambien in combination with her Flexeril dose helps her sleep but she feels
Also testifying was a Vocational Expert, Josephine Doherty. Ms. Doherty stated that her testimony was based upon her training, experience, and familiarity with the Dictionary of Occupational Titles. She indicated that she was familiar with Plaintiff's work history. The ALJ asked her to assume an individual who is the same age, education, and work experience as the claimant. She was asked to further assume that this hypothetical person has the residual functional capacity to perform sedentary work that is further restricted to a sit/stand at will option. The hypothetical claimant also can only occasionally balance, stoop, and climb ramps or stairs and never climb ladders, kneel, crouch, or crawl. The hypothetical claimant cannot operate foot pedals with her lower extremities and is limited to only occasionally reaching overhead or pushing or pulling with her upper extremities. The hypothetical claimant also much avoid exposure to fumes, dust, odors, chemical irritants, cold temperatures, excessive noise, and excessive dampness and humidity. She cannot be exposed to dangerous machinery or unprotected heights and is limited to occupations requiring simple tasks only that are not performed in a fast-paced production environment. Finally, the hypothetical claimant must function in a workplace where few changes occur. Based upon these assumptions, the Vocational Expert testified that such a claimant would be unable to perform Plaintiff's past relevant work. The Vocational Expert stated further that there are sedentary, unskilled positions that the hypothetical claimant could perform such as a charge account clerk, a ticket counter, or an inspector. (R.633-35).
When the ALJ asked the Vocational Expert to assume the same limitations as in the first hypothetical question plus an additional limitation requiring the use of a cane, the Vocational Expert stated that this additional restriction would not preclude performance of the three jobs she had identified. Then, when the ALJ asked that she also assume all previous limitations plus the additional limitation that Plaintiff would be off task for 30 percent of the workday due to pain, the Vocational Expert stated that no work would be available for such a person. (R.36).
Plaintiff's attorney asked the Vocational Expert whether, assuming all other hypothetical limitations previously discussed and modifying the time off-task due to pain to 10 percent of the work day whether Plaintiff would be employable. The Vocational Expert stated that the job base would be eroded but not completely eliminated. Plaintiff's attorney then inquired, assuming Plaintiff could sit no more than two hours and stand no more than two hours in an eight-hour workday, whether she would be able to do any of the jobs that the Vocational Expert had identified. The Vocational Expert responded that such an individual would be unable to sustain any full-time job. (R.637-38).
A. Dr. Parnes.
On September 2, 2008, Plaintiff underwent a physical examination by Dr. Marc
B. Dr. Lattuga.
On May 29, 2009, Plaintiff was seen by Dr. Sebastian Lattuga, an orthopedic surgeon, at the request of Dr. Ranga Krishna, about whom we will hear more later. Dr. Lattuga's report of his "spinal consult" with Plaintiff indicates that she had complaints of neck and back pain with radiation into both the upper and lower extremities. Dr. Lattuga documented both tenderness and spasms in Plaintiff's cervical and thoracolumbar spinal regions. He also noted "sensation is altered in the C6, L5-S1 nerve root distributions, positive straight-leg raise test." Dr. Lattuga diagnosed "cervical radiculopathy, sprain" and "lumbar radiculopathy, sprain" and advised Plaintiff "to refrain from activity that exacerbates symptoms such as heavy lifting, carrying, or bending." (R.186-88).
C. Dr. Mazella.
Plaintiff was seen by Dr. John Mazella, an orthopedic surgeon, on three occasions. Each of these related to referrals by the New York City Transit Authority for evaluation of Plaintiff's physical status secondary to her work-related injury. After conducting the first of these evaluations on October 1, 2008, Dr. Mazella reported that "she walked with a small antalgic gait pattern weight bearing on the left." She was experiencing mild spasm in the left side of her back with attendant myofascial irritation. Her straight-leg raising test was negative bilaterally but she could not complete the Patrick maneuver due to left hip pain. Range of motion in her left hip was significantly restricted due to groin pain. Dr. Mazella diagnosed left hip groin adductor strain and lumbar stain/sprain without radiculopathy. He concluded that Plaintiff was experiencing a moderate partial temporary orthopedic disability and was able to work with the following restrictions: lifting, carrying, pushing, and pulling not to exceed ten to twenty pounds; twisting, climbing, and bending to be avoided; limited walking; and no exposure to heights, moving machinery, or repetitive movements. (R.259-262).
On April 15, 2009, Dr. Mazella saw Plaintiff a second time. His notes of that examination confirmed that Plaintiff underwent MRI's on February 20, 2009 that indicated she had (1) a bulging disc at C3-4, C6-7, with mild left neural foraminal stenosis at C3-4; and (2) a bulging disc at L5-S1. Dr. Mazella's examination of Plaintiff's cervical spine disclosed no spasms, no identified trigger points, and only minimally limited range of motion. However, two trigger points were identified in the left lumbar area and forward flexion produced left-sided lower back pain. Once again, the Patrick test was positive for left lower back pain but, unlike the results of October 1, 2008, negative for hip pain. Dr. Mazella diagnosed: (1) cervical strain/sprain without radiculopathy and (2) lumbar strain/sprain with myofascial irritation trigger point left side without radiculopathy. Dr. Mazella described Plaintiff's status as one of "mild partial temporary orthopedic disability" and recommended exactly the same limitations he had proposed on October 1, 2008 except that he stated that her ability to push, pull, lift, or carry had increased such that she could handle up to 25 pounds. Dr. Mazella also indicated that she should receive trigger point injections in her lumbar spine. (R.253-57).
Dr. Mazella's diagnoses changed per his report of July 1, 2009 to indicate: (1) cervical strain/sprain with left-sided radiculopathy and (2) lumbar strain/sprain with myofascial trigger point and left-sided sciatic radiculopathy. Thus, while Dr. Mazella's impressions of Plaintiff's situation remained fairly constant during three consults over a period of approximately nine months, he did note both lower and upper extremity radiculopathy for the first time after the last consult on July 1, 2009. Dr. Mazella continued to opine that Plaintiff could work provided she work within the capacities described in his office notes of the April 15, 2009 session with Plaintiff. (R.243-245).
D. Dr. Nowak.
Dr. Miroslawa Nowak, a rheumatologist, saw Plaintiff on several occasions. Dr. Nowak's assessment of Plaintiff's blood work indicated the presence of anti-nuclear bodies (ANA) an indicator of rheumatoid arthritis, lupus, or other autoimmune disease. Dr. Nowak's physical examination of Plaintiff revealed synovitis (an inflammation of a synovial sac) in both the metacarpal and metatarsal regions of Plaintiff's left foot. Considering Plaintiff's hands and feet, she had six tender joints and four swollen joints. Dr. Nowak's assessment was inflammatory polyarthritis, not otherwise specified, and rule out rheumatoid arthritis. Dr. Nowak's prescribed prednisone to alleviate Plaintiff's inflammation along with Plaquenil and Soma to be taken long term. (R.421-427).
E. Dr. Krishna.
Dr. Ranga Krishna, a neurologist, treated Plaintiff from an initial appointment on September 28, 2008 through at least September 24, 2010. The record indicates that Dr. Krishna examined Plaintiff at no fewer than 14 occasions over this two year period. A review of his office notes of these examinations reveals that Dr. Krishna consistently found that Plaintiff suffered from spasms in the cervical and lumbar regions and displayed an antalgic gait. Dr. Krishna's impression throughout his numerous encounters with Plaintiff was that she was afflicted by a cervical and lumbar strain injury and neuropathic pain syndrome. From November of 2008
On January 20, 2009, Dr. Krishna stated that Plaintiff's persistent complaints of back and neck pain had not improved despite therapy and long term medication. On this occasion, Dr. Krishna noted for the first time that Plaintiff experienced neck pain that radiated into her arms. He noted also that her neck pain was exacerbated by Valsalva maneuvers and her lower back pain increased when she would walk, bend, or climb stairs. The diagnosis at this time changed to cervical and lumbar sprain with radiculopathy and attendant neuropathic pain syndrome. (R.438).
On May 4 and May 29, 2009, Dr. Krishna noted that Plaintiff's lumbar pain had increased and she was experiencing pain radiating from her buttocks down the lateral aspect of both legs along with tingling in the legs and occasional numbness in the feet and toes. On both these dates, Dr. Krishna gave Plaintiff epidural steroid injections at the L5-S1 level to try to alleviate her pain. On both occasions he noted that the injections provided Plaintiff with "good" pain relief. The examinations of May 4 and May 29, 2009 also disclosed positive paravertebral trigger points along the Plaintiff's lumbar spine. (R.444-448).
On August 17, 2009, Dr. Krishna's examination indicated that the Plaintiff was doing better in terms of pain and that she could go back to work without restrictions. His impression at that time was "lumbar strain injury resulting in radiculopathy. Left hip pain." (R.466). Then, approximately one month later on September 21, 2009, Dr. Krishna's evaluation changed markedly. His notes of that session with Plaintiff indicate: "the patient's critical features are consistent with a chronic lumbar and cervical neuropathic pain syndrome. The lumbosacral neuropathic pain syndrome seems to have worsened." Dr. Krishna expressed an intention to obtain electrodiagnostic studies of the Plaintiff's lower extremities and reassess her afterward. The electro-diagnostic study obtained by Dr. Krishna on September 21, 2009 revealed evidence of chronic radiculopathy at the L5-S1 level. (R.469-477).
From September 21, 2009 through the last of Dr. Krishna's treatment notes in the record, that of September 24, 2010, he consistently noted that Plaintiff was totally disabled as a result of persistent pain in the lumbar region that could not be relieved by pain medications. During this entire period of more than one year, the Plaintiff exhibited positive paravertebral trigger points along her lumbar spine with numbness in her legs and feet. On four occasions during this period Dr. Krishna gave Plaintiff epidural injections at L5-S1. Each resulted in "good" pain relief and a modest improvement by VAS scale. The "good" relief afforded the patient was apparently only temporary as evidenced by the frequency and duration of these injections. (R.478-501).
Dr. Krishna also executed two functional capacity evaluations regarding Plaintiff. The first of these is dated December 4, 2009. Dr. Krishna described the laboratory findings from the cervical and lumbar MRI's that had been discussed above and estimated: (1) Plaintiff's impairment had lasted or could be expected to last at least 12 months; (2) Plaintiff could lift 0-5 pounds frequently; (3) Plaintiff should never lift more than 5 pounds; (4)Plaintiff could never stoop, crouch, kneel, bend, climb or balance; (5) Plaintiff can walk no more than one block; (6) Plaintiff cannot use public transportation alone; (7) routine activities exacerbate Plaintiff's pain and make her condition worse; and (8) Plaintiff is unable to work in any functional capacity. (R.276-280).
IV. ALJ Decision.
The ALJ's decision (Doc. 12-2 at 18-31) was unfavorable to the Plaintiff. It included the following Findings of Fact and Conclusions of Law:
V. Disability Determination Process.
The Commissioner is required to use a five-step analysis to determine whether a claimant is disabled.
The disability determination involves shifting burdens of proof. The initial burden rests with the claimant to demonstrate that he or she is unable to engage in his or her past relevant work. If the claimant satisfies this burden, then the Commissioner must show that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir.1993).
As set out above, the instant decision was decided at the fifth step of the process when the ALJ found there are jobs that exist in the national economy that Plaintiff is able to perform. (R.27-28).
VI. Standard of Review
This Court's review of the Commissioner's final decision is limited to determining whether there is substantial evidence to support the Commissioner's decision. 42 U.S.C. § 405(g); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999). Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); see also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981). The Third Circuit Court of Appeals further explained this standard in Kent v. Schweiker, 710 F.2d 110 (3d Cir.1983).
710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to analyze all evidence. If she has not done so and has not sufficiently explained the weight given to all probative exhibits, "to say that [the] decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational." Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). In Cotter, the Circuit Court clarified that the ALJ must not only state the evidence considered which supports the result but also indicate what evidence was rejected: "Since it is apparent that the ALJ cannot reject evidence for no reason or the wrong reason, an explanation from the ALJ of the reason why probative evidence has been rejected is required so that a reviewing court can determine whether the reasons for rejection were improper." Cotter, 642 F.2d at 706-07. However, the ALJ need not undertake an exhaustive discussion of all the evidence. See, e.g., Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). "There is no requirement that the ALJ discuss in its opinion every tidbit of evidence included in the record." Hur v. Barnhart, 94 Fed.Appx. 130, 133 (3d Cir. 2004). "[W]here [a reviewing court] can determine that there is substantial evidence supporting the Commissioner's decision,... the Cotter doctrine is not implicated." Hernandez v. Commissioner of Social Security, 89 Fed.Appx. 771, 774 (3d Cir. 2004) (not precedential).
A reviewing court may not set aside the Commissioner's final decision if it is supported by substantial evidence, even if the court would have reached different factual conclusions. Hartranft, 181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ..."). "However, even if the Secretary's factual findings are supported by substantial evidence, [a court] may review whether the Secretary, in making his findings, applied the correct legal standards to the facts presented." Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir.1983) (internal quotation omitted). Where the ALJ's decision is explained in sufficient detail to allow meaningful judicial review and the decision is supported by substantial evidence, a claimed error may be deemed harmless. See, e.g., Albury v. Commissioner of Social Security, 116 Fed.Appx. 328, 330 (3d Cir.2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d 112 (3d Cir.2000)) ("[O]ur primary concern has always been the ability to conduct meaningful judicial review."). An ALJ's decision can only be reviewed by a court based on the evidence that was before the ALJ at the time he or she made his or her decision. Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir.2001).
A. General Considerations
At the outset of our review of whether the ALJ has met the substantial evidence standard regarding the matters at issue here, we note the Third Circuit has repeatedly emphasized the special nature of proceedings for disability benefits. See Dobrowolsky, 606 F.2d at 406. Social Security proceedings are not strictly adversarial, but rather the Social Security Administration provides an applicant with assistance to prove his claim. Id. "These proceedings are extremely important to the claimants, who are in real need in most instances and who claim not charity but that which is rightfully due as provided for in Chapter 7, Subchapter II, of the Social Security Act." Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837, 840 (3d Cir. 1974). As such, the agency must take extra care in developing an administrative record and in explicitly weighing all evidence. Dobrowolsky, 606 F.2d at 406. Further, the court in Dobrowolsky noted "the cases demonstrate that, consistent with the legislative purpose, courts have mandated that leniency be shown in establishing the claimant's disability, and that the Secretary's responsibility to rebut it be strictly construed." Id.
B. Plaintiff's Allegations of Error.
1. Whether the ALJ Failed to Afford Proper Evidentiary Weight to the Opinion of the Treating Physician?
Plaintiff asserts that the ALJ improperly subordinated the medical opinion of treating physician Ranga Krishna, a board-certified neurologist, to that of a mere examining physician, Dr. John Mazella, who saw Plaintiff on only three occasions for consults at the request of the Plaintiff's workman's compensation carrier. Plaintiff correctly asserts that a treating physician is entitled to a great deal of deference under the case law of this circuit. The opinions of treating physicians are entitled to great weight, particularly when based upon a longtime doctor/patient relationship as is the case before us. Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). An ALJ is categorically precluded from making a residual functional capacity ("RFC") assessment that contradicts a treating physician's opinion in the absence of medical evidence that contradicts the treating physician's conclusion. Doak v. Heckler, 790 F.2d 26, 29 (3d. Cir.1986). To do so is to make an RFC determination that is unsupported by substantial evidence and, thus, void. Diller v. Acting Commissioner of Social Security, 962 F.Supp.2d 761, 769 (W.D.Pa.2013). In light of this case law, the question that must be answered is whether the record contains medical evidence that refutes the opinion of treating physician Krishna that Plaintiff was completely disabled.
The ALJ states: the medical examinations conducted by Dr. Mazella showed few limitations and he stated that "claimant was capable of light work." (R.26). Actually, Dr. Mazella concluded that Plaintiff was experiencing "a moderate partial temporary orthopedic disability" and was capable of working with the following restrictions: "lifting, carrying, pushing and pulling should not exceed 10-20 pounds. Twisting, climbing, and bending movements are to be avoided. Walking is limited. She cannot work at heights, operate a motor vehicle and/or mechanical equipment at work, or perform repetitive movements." (R.262). While Dr. Mazella never addressed "light work" as a term of art in the lexicon of the Social Security regulations, the physical capacities he assigned Plaintiff are easily within the ALJ's RFC determination of
2. Whether the ALJ Failed to Properly Formulate Plaintiff's RFC by Neglecting to Clearly Develop Plaintiff's Need to Alternate Between Sitting and Standing?
Plaintiff asserts that her need to alternate between sitting and standing was inadequately addressed by the ALJ's hypothetical question to the vocational expert. The hypothetical question posed to the vocational expert included the stipulation that Plaintiff's ability to work at the sedentary level was limited, among numerous other factors by "the option to sit or stand at will." (R.634). Plaintiff is unsatisfied with this formulation and argues that the degree to which a sit/stand option erodes the occupational base of sedentary jobs went unaddressed. The Court cannot agree. The vocational expert clearly contemplated that a sit/stand at will option was necessary to accommodate Plaintiff when she certified that various jobs that exist in significant numbers in the national economy could be performed by a person with Plaintiff's limitations, including the sit/stand limitation. The Court cannot envision how Plaintiff's need to alternate between sitting and standing positions could have been more clearly addressed than by an "at will" option. (R.634-636). Indeed, the vocational expert even testified that these jobs would remain without erosion even if an additional limitation involving the use of a cane was added. (R.636). Thus, the Court finds that Plaintiff's assignment of error on this point is inappropriate.
3. Whether the ALJ Improperly Discredited Plaintiff's Testimony Regarding the Limiting Effects of Pain?
Plaintiff correctly points out that the agency's own regulations provide: "An individual's statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by medical evidence." See SSR 16-3p. In this case, the ALJ made the oft-seen observation that, while Plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms Plaintiff alleges, her statements about the intensity, persistence and limiting effects of the symptoms were not entirely credible. (R.26). The ALJ then stated:
(R.26). This language is the exact terminology Judge Mannion found wanting when he remanded this case (then denoted as Middle District of Pennsylvania No. 3:12-cv-01868) on April 29, 2014. The ALJ's observation that such observable signs of intractable pain as an altered gait or limitation of motion are not present in this case was incorrect in 2014 and remains incorrect today. The record in this case is liberally sprinkled with documentation of Plaintiff's antalgic gait and limited range of motion in her neck, low back and left hip.
For the reasons cited in the foregoing Memorandum, the Plaintiff's assignments of error are rejected but for her contention that the ALJ's rationale for not fully crediting her account of the intensity and persistence of her pain is apparently contradicted by the record. This case must be remanded for further proceedings in which the agency either awards Plaintiff benefits or articulates a valid reason why Plaintiff's seemingly well-documented complaints of intractable and intense pain were not found entirely credible. An Order consistent with this determination will be filed contemporaneously herewith.
42 U.S.C. § 423(d)(2)(A).