UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

REBECCA A. BERGSTRESSER, :

:CIVIL ACTION NO. 3:15-CV-1744

Plaintiff, :

:(JUDGE CONABOY)

v. :

:

CAROLYN W. COLVIN, :

Acting Commissioner of :

Social Security, :

:

Defendant. :

:

___________________________________________________________________

MEMORANDUM

Here we consider Plaintiff’s appeal from the Commissioner’s

denial of Disability Insurance Benefits (“DIB”) under Title II of

the Social Security Act, alleging an onset date of April 19, 2012. 

(Doc. 1.) The Administrative Law Judge (“ALJ”) who evaluated the

claim, Patrick Cutter, concluded in his June 25, 2014, Decision

that Plaintiff’s severe impairments of chronic renal failure,

degenerative joint disease right knee status-post knee replacement

surgery, and residual right-sided weakness from childhood stroke

did not alone or in combination with her multiple non-severe

impairments meet or equal the listings. (R. 23.) ALJ Cutter also

found that Plaintiff had the residual function capacity (“RFC”) to

perform sedentary work with certain nonexertional limitations and

that she was capable of performing jobs that existed in significant

numbers in the national economy. (R. 23-28.) The ALJ therefore

found Plaintiff was not disabled under the Act. (R. 29.) 

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With this action, Plaintiff asserts that the case should be

remanded for further proceedings because the ALJ’s finding that

Plaintiff could perform jobs such as final assembler, inspector,

and table worker lacks the support of substantial evidence and her

evaluation of medical and non-medical evidence lacks the support of

substantial evidence. (Doc. 10 at 12.) After careful

consideration of the administrative record and the parties’

filings, I conclude this appeal is properly granted. 

I. Background

A. Procedural Background

Plaintiff protectively filed for DIB on May 1, 2012. (R. 20.) 

The claim was initially denied on January 4, 2013, and Plaintiff

filed a request for a hearing before an ALJ on January 9, 2013. 

(R. 20.) 

A hearing was held before ALJ Cutter on June 18, 2014. (R.

31-49.) Plaintiff, accompanied by her attorney, testified as did

Vocational Expert (“VE”) Brian Byerley. (R. 65.) As noted above,

the ALJ issued his unfavorable decision on June 25, 2014. (R. 29.)

On July 3, 2014, Plaintiff filed a Request for Review with the

Appeals Council. (R. 16.) Noting that additional information

submitted did not affect the ALJ decision because it addressed a

later time period, the Appeals Council denied Plaintiff’s request

for review of the ALJ’s decision on July 7, 2015. (R. 1-6.) In

doing so, the ALJ’s decision became the decision of the Acting

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Commissioner. (R. 1.) 

On September 4, 2015, Plaintiff filed her action in this Court

appealing the Acting Commissioner’s decision. (Doc. 1.) Defendant

filed her answer and the Social Security Administration transcript

on November 13, 2015. (Docs. 8, 9.) Plaintiff filed her

supporting brief on December 10, 2015. (Doc. 10.) Defendant filed

her brief on January 4, 2016. (Doc. 11.) Plaintiff did not file a

reply brief and the time for doing so has passed. Therefore, this

matter is ripe for disposition. 

B. Factual Background

Plaintiff was born on April 29, 1972–-she was thirty-nine

years old on the alleged onset date. (R. 27.) Plaintiff has a

high school education and past relevant work as a childcare

attendant. (Id.) 

1. Impairment Evidence

Because Plaintiff’s claimed errors relate specifically to her

right side upper extremity weakness and fatigue, our review of the

evidence focuses on these asserted problems. 

a. Upper Extremity Weakness

On February 6, 2008, Plaintiff saw Inwha Cho, M.D., for a

neurological evaluation. (R. 461-62.) By history, he noted that

Plaintiff had a stroke at the age of seven which resulted in

spastic right hemiparesis. (R. 461.) Neurological examination

included the following findings: spastic right hemiparesis, worse

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in the right upper extremity; hand grip measure of twenty pounds on

the right and thirty pounds on the left; and muscle strength of 4-

5/5 in the right upper extremity. (Id.) 

Peter G. Uggowitz, M.D., of Carroll Family Medicine was

Plaintiff’s primary care physician. (Doc. 10 at 3; see also R.

470.) Plaintiff was often seen by his physician’s assistant, Emily

Wollenweber, PA-C. (R. 469.) 

In a letter dated January 28, 2013, Dr. Uggowitz noted that

Plaintiff had been a patient since 2003, that her history included

a cerebrovascular accident (“CVA”), and due to this and other

illnesses, she was not able to be employed either full or parttime. (R. 369.) He added that he did not see her condition

improving. (Id.) 

In a letter dated June 2, 2014, Ms. Wollenweber stated that

Plaintiff had a right hemispheric cerebrovascular accident at the

age of seven secondary to which she had chronic right spastic

hemiparesis and examination showed right upper extremity limited

range of motion and weakness. (R. 469.) Ms. Wollenweber further

noted that the symptoms and examination findings had been present

for many years. (Id.) She opined that the condition would not

improve and may worsen over time, and she stated there was no

medication that would benefit the condition. (Id.) In the

attached Stroke Impairment Questionnaire of the same date, Ms.

Wollenweber identified symptoms such as tremors, involuntary

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movements, weakness, poor coordination, and loss of manual

dexterity. (R. 471-72.) She further opined that limitations

affecting Plaintiff’s ability to work on a regular basis included

no pushing and pulling. (R. 475.) She limited Plaintiff’s lifting

and carrying capabilities to her left upper extremity. (R. 473.) 

State agency consultant Thomas McLaughlin, M.D., evaluated

Plaintiff on December 11, 2012. (R. 341-46.) He noted that after

suffering a CVA at the age of seven, Plaintiff initially had

paralysis of the right arm and right leg, she was right-handed at

the time, she eventually learned to use her left hand, and she has

some movement in the right arm although “there [is] marked weakness

and contractures of the arm and hand.” (R. 341.) Examination

showed the following: Plaintiff was unable to make a fist with her

right hand; she was unable to open a jar, open a door, pick up

coins and write with her right hand; her grip strength measured

eight kilograms of force on the right and twenty on the left; she

had 3/5 strength in her right upper extremity and 5/5 in the left;

and she could not accomplish rapid alternating movements with her

right upper extremity. (R. 345-46.) Dr. McLaughlin’s

Impression/Plan included “CVA with resultant right sided weakness

and right upper extremity contractures.” (R. 346.) In the

attached Medical Source Statement of Claimant’s Ability to Perform

Work-Related Physical Activities, Dr. McLaughlin opined that

Plaintiff could only use her left upper extremity to lift and carry

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and her abilities to push, pull, reach, handle, and finger were

also limited. (R. 348-49.) 

In a January 2, 2013, assessment, State agency consultant Juan

B. Mari-Mayans, M.D., reviewed the medical evidence, including Dr.

McLaughlin’s evaluation. (R. 50.) In his analysis of activities

of daily living, Dr. Mari-Mayans records that Plaintiff reported

partial paralysis of the right side and he notes parenthetically

“not supported by evidence, knee pain, prepares meals, drives,

problems buttoning/zipping, no other problems with personal care,

socializes, no narcotics, PT was while clmt in elementary school.” 

(R. 53.) Dr. Mari-Mayans recorded that Plaintiff was not able to

make a fist with her right hand, was “able to perform fine/dextrous

with left hand,” and had 3/5 strength in her right upper extremity

and 5/5 in the left. (R. 54.) He concluded Plaintiff had no

restrictions in her activities of daily living, she could lift

and/or carry ten pounds occasionally and less than ten pounds

frequently, she was unlimited in her abilities to push and/or pull,

and she had no manipulative limitations. (R. 56-57.) In his

evaluation of Dr. McLaughlin’s opinion, Dr. Mari-Mayans opined that

great weight could not be given to the opinion: the limitations

found were not consistent with all of the evidence and non-medical

evidence in the claims file; it appeared Dr. McLaughlin “relied

heavily on the subjective report of symptoms and limitations

provided by the claimant”; and the evidence provided in the report

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is based on an isolated exam and is an overestimation of the

severity of Plaintiff’s limitations. (R. 57.) 

b. Fatigue

Recognizing that fatigue is a symptom rather than an

impairment, following is a brief review of the evidence to which

Plaintiff points in support of this reported symptom (see Doc. 10

at 17 (citing R. 24, 26, 388, 392, 416, 421, 440, 443)) and other

pertinent evidence of record.1

Primary care records indicate that Plaintiff was seen on March

13, 2013, with multiple complaints including fever, body aches, and

right lower quadrant pain. (R. 392.) The Review of Systems was

positive for fatigue. (Id.) 

On March 19, 2013, Plaintiff was seen for follow up after

being hospitalized for two days due to a urinary tract infection. 

(R. 388.) The Review of Systems was again positive for fatigue. 

(Id.) 

At her April 17, 2013, follow up visit, conducted by Ms.

Wollenweber, Plaintiff’s “Active Problem List” includes “Anemia

Unspecified.” (R. 383.) Historically, Ms. Wollenweber reported

that Plaintiff was anemic when she was in the hospital in March

 The first citation is to Plaintiff’s testimony regarding 1

fatigue which will be reviewed later in this Memorandum, and the

second citation is to the ALJ’s conclusion that there is no medical

basis to support Plaintiff’s related allegations. (Id. (citing R.

24, 26).) Plaintiff’s remaining citations refer to primary care

office records. (Id. (citing 388, 392, 416, 421, 440, 443).)

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2013: her hemoglobin then was 10.3 and her April 10 blood work th

showed the level had increased to 11.6. (R. 384.) The Review of

Systems was negative for fatigue. (Id.) Plaintiff’s medications

included Slow Release Iron 168 mg. (50 mg. iron) one tablet daily. 

(R. 386.)

On May 30, 2013, Plaintiff reported a urinary tract infection

with symptoms including sweats and chills, fatigue, back pain, and

mild right lower quadrant abdominal discomfort. (R. 420.) The

Review of Systems was positive for fatigue. (R. 421.) Assessment

included Anemia Unspecified and her medications included slow

release iron. (Id.) 

At her November 2013 annual physical, Plaintiff again reported

fatigue and continued to take iron. (R. 416.) 

Plaintiff again had a urinary tract infection in February 2014

and reported fatigue. (R. 443.) She continued to take slow

release iron. (Id.) 

In May 2014, Plaintiff saw Ms. Wollenweber with a chief

complaint of feeling off balance. (R. 440.) Ms. Wollenweber

recorded chronic right side weakness related to the CVA when she

was seven and also noted fatigue in her Review of Systems and

continuation of slow release iron. (Id.) 

2. Hearing Testimony

At the June 18, 2014, hearing, Plaintiff testified that she

gets “so tired all the time” and she has to take naps throughout

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the day. (R. 36.) Upon further questioning, she said she took two

naps a day, and it was too much for her to be on her feet all day. 

(Id.) 

Regarding activities of daily living, Plaintiff said she did

grocery shopping but she did it with her husband’s help because she

could not lift. (R. 39.) 

When questioned about her part-time job at Rite Aid, Plaintiff

testified that she missed work sometimes because of depression,

explaining 

I would just break down and my arm from my

stroke would actually hurt. It–-because the

computer–-the cash register was on the side

that I would have to use my right hand but I

couldn’t use it. I had to balance or

maneuver however I could, just to use my left

hand because I can’t use my right hand for

manipulative things.

(R. 41-42.) She also said she gets tingling and stiffness in her

right arm and it tenses up to the point that it gets very painful. 

(R. 42.) Plaintiff added she has had the problems since she had

the stroke when she was seven and there is no medication that will

help. (Id.) 

Plaintiff’s attorney asked her to explain how she was able to

work for a long time with her chronic conditions and what had

changed. (R. 44.) Plaintiff responded that her concentration and

right arm condition had worsened. (Id.) Regarding her arm, she

noted it had always been bad but “I have to focus on just keeping

it down because if I don’t, it’ll curl up into a ball.” (Id.) 

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The ALJ posed a hypothetical question to VE Byerley concerning 

a hypothetical individual who has the same

vocational profile as the claimant and has a

residual functional capacity to perform a

range of sedentary work . . . subject to the

following limitations. The individual should

avoid climbing, kneeling, crouching, or

crawling; would require a cane for prolonged

ambulation. The work should involve only

routine, repetitive, one to two step type

tasks, occasional changes, and occasional

decision-making. 

(R. 45-46.) The VE testified that such an individual would not be

able to perform Plaintiff’s past work. (R. 46.) The VE then

identified examples of positions the hypothetical individual would

be able to perform: final assembler, inspector, and table worker

(which is also an inspector occupation). (Id.) He testified that

if the individual were not able to push, pull, kneel, bend, or

stoop, she would still be able to perform the jobs identified. (R.

47-48.) The VE further testified that the individual would not be

able to maintain employment if she were off task twenty percent of

the work time or consistently missed work two or three times a

month. (Id.) 

3. ALJ Decision

ALJ Cutter made the following Findings of Fact and Conclusions

of Law: 

1. The claimant meets the insured status

requirements of the Social Security Act

through December 31, 2016.

2. The claimant has not engaged in

substantial gainful activity since April

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19, 2012, the alleged onset date (20 CFR

404.1571 et seq.).

3. The claimant has the following severe

impairments: chronic renal failure,

degenerative joint disease right knee

status-post knee replacement surgery,

and residual right-sided weakness from

childhood stroke (20 CFR 404.1520(c)).

4. The claimant does not have an impairment

or combination of impairments that meets

or medically equals the severity of one

of the listed impairments in 20 CFR Part

404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the

entire record, the undersigned finds

that the claimant has the residual

functional capacity to perform sedentary

work as defined in 20 CFR 404.1567(a)

subject to the following. She must not

climb, kneel, crouch or crawl and

requires a cane for prolonged

ambulation. She is limited to routine,

repetitive 1-2 step tasks, occasional

changes and occasional decision-making.

6. The claimant is unable to perform any

past relevant work (20 CFR 404.1565).

7. The claimant was born on April 29, 1972

and was 39 years old, which is defined

as a younger individual age 18-44, on

the alleged disability onset date (20

CFR 404.1563).

8. The claimant has at a least a high

school education and is able to

communicate in English (20 CFR

404.1564).

9. Transferability of job skills is not

material to the determination of

disability because using the MedicalVocational Rules as a framework supports

a finding that the claimant is “not

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disabled,” whether or not the claimant

has transferable job skills (See SSR 82-

41 and 20 CFR Part 404, Subpart P,

Appendix 2).

10. Considering the claimant’s age,

education, work experience, and residual

functional capacity, there are jobs that

exist in significant numbers in the

national economy that the claimant can

perform (20 CFR 404.1569 and

404.1569(a)).

11. The claimant has not been under a

disability, as defined in the Social

Security Act, from April 19, 2012,

through the date of this decision (20

CFR 404.1520(g)).

(R. 22-28.) 

Regarding Dr. McLaughlin’s evaluation, the ALJ noted

Plaintiff’s inability to make a fist, open a jar, open a door, pick

up coins, and write with her right hand. (R. 25.) He also noted

grip strength of eight kilograms on the right and twenty on the

left, and 2/5 strength in the right upper extremity compared with

5/5 on the left. (Id.) 

In support of his determination that objective medical

evidence and the overall record did not support the extreme

symptoms and limitations alleged, ALJ Cutter noted that there was

“no evidence to support her right arm weakness has worsened.” (R.

26.) He also concluded there was no medical basis to support her

allegation that she is fatigued all day every day and must nap for

several hours. (Id.) 

As for opinion evidence, ALJ Cutter’s explanation for the

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little weight assigned to Ms. Wollenweber’s June 2014 reports

included his observation that Plaintiff “worked for years despite

the stroke residuals, which have remained stable” and no clinical

findings support total restrictions in bending, pushing, pulling,

and stooping which, even if credited, would not preclude the jobs

identified by the VE. (R. 26.) 

For similar reasons, ALJ Cutter undermined Dr. Uggowitzer’s

opinion provided in a narrative letter in January 2013 that the

reasons Plaintiff was unable to work included her stroke residuals. 

(Id.) The ALJ noted that Plaintiff has “mild right-sided weakness

and has functioned well despite this.” (Id.) 

Little weight was assigned to Dr. McLaughlin’s opinion

regarding manipulative limitations because ALJ Cutter found “no

convincing evidence to support these are warranted since the

residual weakness in her nondominant right upper extremity has

remained stable and she has functioned adequately at work and with

activities of daily living despite this.” (R. 27.) 

ALJ Cutter assigned significant weight to Dr. Mari-Mayans’

opinion that Plaintiff was capable of light work because he found

it well supported by the objective medical evidence and the overall

record. (Id.) 

II. Disability Determination Process

The Commissioner is required to use a five-step analysis to

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determine whether a claimant is disabled. It is necessary for the 2

Commissioner to ascertain: 1) whether the applicant is engaged in a

substantial activity; 2) whether the applicant is severely

impaired; 3) whether the impairment matches or is equal to the

requirements of one of the listed impairments, whereby he qualifies

for benefits without further inquiry; 4) whether the claimant can

perform his past work; 5) whether the claimant’s impairment

together with his age, education, and past work experiences

preclude him from doing any other sort of work. 20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.

521, 110 S. Ct. 885, 888-89 (1990). 

If the impairments do not meet or equal a listed impairment,

the ALJ makes a finding about the claimant’s residual functional

 “Disability” is defined as the “inability to engage in any 2

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 that 12 months . . . .” 42 U.S.C.

§ 423(d)(1)(A). The Act further provides that an individual is

disabled 

only if his physical or mental impairment or

impairments are of such severity that he is not

only unable to do his previous work but cannot,

considering his age, education, and work

experience, engage in any other kind of

substantial gainful work which exists in the

national economy, regardless of whether such

work exists in the immediate area in which he

lives, or whether a specific job vacancy exists

for him, or whether he would be hired if he

applied for work. 

42 U.S.C. § 423(d)(2)(A).

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capacity based on all the relevant medical evidence and other

evidence in the case record. 20 C.F.R. § 404.1520(e); 416.920(e). 

The residual functional capacity assessment is then used at the

fourth and fifth steps of the evaluation process. Id.

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 step

five of the sequential evaluation process when the ALJ found that

Plaintiff could perform jobs that existed in significant numbers in

the national economy. (R. 27-28.) 

III. 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 (1971); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). The Third

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Circuit Court of Appeals further explained this standard in Kent v.

Schweiker, 710 F.2d 110 (3d Cir. 1983).

This oft-cited language is not . . . a

talismanic or self-executing formula for

adjudication; rather, our decisions make

clear that determination of the existence vel

non of substantial evidence is not merely a

quantitative exercise. A single piece of

evidence will not satisfy the substantiality

test if the Secretary ignores, or fails to

resolve, a conflict created by countervailing

evidence. Nor is evidence substantial if it

is overwhelmed by other evidence–-

particularly certain types of evidence (e.g.,

that offered by treating physicians)–-or if

it really constitutes not evidence but mere

conclusion. See [Cotter, 642 F.2d] at 706

(“‘Substantial evidence’ can only be

considered as supporting evidence in

relationship to all the other evidence in the

record.”) (footnote omitted). The search for

substantial evidence is thus a qualitative

exercise without which our review of social

security disability cases ceases to be merely

deferential and becomes instead a sham.

Kent, 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

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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 F. App’x 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,

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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 F. App’x 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). 

IV. Discussion

Plaintiff asserts that the case should be remanded for further

proceedings because the ALJ’s finding that Plaintiff could perform

jobs such as final assembler, inspector, and table worker lacks the

support of substantial evidence and her evaluation of medical and

non-medical evidence lacks the support of substantial evidence. 

(Doc. 10 at 12.) In essence, these claimed errors attack the ALJ’s

RFC determination based on both credibility and medical evidence

grounds and also attack his hypothetical question formulation and

conclusions drawn by the VE based on the question posed. 

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A. Medical and Opinion Evidence

Plaintiff states the “most critical problem” with the RFC is

ALJ Cutter’s failure to account for Plaintiff’s significant

manipulative limitations affecting her right upper extremity. 

(Doc. 10 at 13.) Defendant maintains this argument is without

merit because the evidence shows that, despite Plaintiff’s rightsided weakness from the childhood stroke, she was able to perform

substantial gainful activity for fifteen years, the stroke did not

result in severe manipulative limitations, and the ALJ was not

required to include additional restrictions in his RFC assessment. 

(Doc. 11 at 14.) I conclude this claimed error is cause for

remand.

Under applicable regulations and the law of the Third Circuit,

a treating medical source’s opinions are generally entitled to

controlling weight, or at least substantial weight. See, e.g.,

Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20

C.F.R. § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d

Cir. 1981)). This principal is codified at 20 C.F.R.

404.1527(c)(2), and is widely accepted in the Third Circuit. Mason

v. Shalala, 994 F.2d 1058 (3d Cir. 1993); see also Dorf v. Brown,

794 F.2d 896 (3d Cir. 1986). The regulation addresses the weight

to be given a treating source’s opinion: “If we find that a

treating source’s opinion on the issue(s) of the nature and

severity of your impairment(s) is well-supported by medically

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acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in your case, we

will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2). “A 3

cardinal principle guiding disability eligibility determinations is

that the ALJ accord treating physicians’ reports great weight,

especially when their opinions reflect expert judgment based on

continuing observation of the patient’s condition over a prolonged

period of time.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.

 20 C.F.R. § 404.1527(c)(2) states in relevant part: 3

Generally, we give more weight to opinions from

your treating sources, since these sources are

likely to be the medical professionals most

able to provide a detailed, longitudinal

picture of your medical impairment(s) and may

bring a unique perspective to the medical

evidence that cannot be obtained from the

objective medical findings alone or from

reports of individual examinations, such as

consultative examinations or brief

hospitalizations. If we find that a treating

source's opinion on the issue(s) of the nature

and severity of your impairment(s) is wellsupported by medically acceptable clinical and

laboratory diagnostic techniques and is not

inconsistent with the other substantial

evidence in your case record, we will give it

controlling weight. When we do not give the

treating source's opinion controlling weight,

we apply the factors listed in paragraphs

(c)(2)(i) and (c)(2)(ii) of this section, as

well as the factors in paragraphs (c)(3)

through (c)(6) of this section in determining

the weight to give the opinion. We will always

give good reasons in our notice of

determination or decision for the weight we

give your treating source's opinion.

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2000) (citations omitted); see also Brownawell v. Commissioner of

Social Security, 554 F.3d 352, 355 (3d Cir. 2008). In choosing to

reject the treating physician’s assessment, an ALJ may not make

“speculative inferences from medical reports and may reject a

treating physician’s opinion outright only on the basis of

contradictory medical evidence and not due to his or her own

credibility judgments, speculation or lay opinion.” Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.

1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).

Similarly, greater deference is due an examining source than a

non-examining source. 20 C.F.R. § 404.1527(c)(1). Section

404.1527(c)(3) provides the following:

The more a medical source presents relevant

evidence to support an opinion, particularly

medical signs and laboratory findings, the

more weight we will give that opinion. The

better an explanation a source provides for

an opinion, the more weight we will give that

opinion. Furthermore, because nonexamining

sources have no examining or treating

relationship with you, the weight we will

give their opinions will depend on the degree

to which they provide supporting explanations

for their opinions. We will evaluate the

degree to which these opinions consider all

of the pertinent evidence in your claim,

including opinions of treating and other

examining sources. 

Id.

In evaluating the medical opinions/evaluations of Dr.

Uggowitzer, Ms. Wollenweber, and Dr. McLaughlin regarding right

upper extremity/residual stroke problems, the ALJ attributed the

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little weight he assigned them to the following reasons: Plaintiff

had worked for many years despite the stroke residuals; the

residual weakness in her right upper extremity had remained stable;

postural and manipulative limitations are inconsistent with

Plaintiff’s activities of daily living; and the limitations were

not supported by other medical evidence or the record as a whole. 

(R. 26-27.) 

While it is true that Plaintiff worked for many years with

residual right upper extremity weakness from the stroke, evidence

suggests that the condition may have worsened over time. Dr. Cho’s

2008 evaluation showed a right hand grip measure of 20 pounds and

muscle strength of 4-5/5 in the right upper extremity. (R. 461.) 

In December 2012, Dr. McLaughlin measured right hand grip pressure

of 8 kilograms (approximately 17.5 pounds) and muscle strength of

3/5 in the right upper extremity. (R. 345.) Therefore, objective

evidence shows a weakening in Plaintiff’s right upper extremity. 

This evidence may also support Plaintiff’s testimony that her right

arm condition has worsened since she worked full time. (R. 44.) 

The ALJ does not discuss Dr. Cho’s evaluation. Although it

was well before the relevant time period, to the extent the

evaluation indicates that the condition was worse during the

relevant time period (as assessed by Dr. McLaughlin (R. 345)) and

contradicts the ALJ’s conclusion that Plaintiff’s stroke residuals

remained stable (R. 26, 27), Dr. Cho’s evaluation is probative

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evidence which, pursuant to Cotter, 642 F.2d at 706-07, should have

been discussed. 

Further, it does not necessarily follow that an ability to

perform a job in the past with one-sided upper extremity weakness

establishes an ability to do other jobs. This is particularly so

when the individual is no longer capable of doing the past work, as

is the case here. The applicability of this general observation to

this case is supported by Plaintiff’s testimony that, although she

had been able to do childcare work in the past, she later had

difficulty being a part-time cashier because of her right upper

extremity weakness. (R. 41-42.) 

As to the ALJ’s finding that the right upper extremity

limitations were not supported by medical evidence or the record as

a whole, certainly Dr. McLaughlin’s objective testing/examination

is consistent with Ms. Wollenweber’s evaluation/opinion. (See R.

341-55, 469-75.) The ALJ points to no specific medical evidence

which contradicts Dr. McLaughlin’s objective findings regarding

Plaintiff’s right upper extremity or the resultant limitations

found in his Medical Source Statement, and my review of the record

reveals none. Thus, the ALJ’s treating and examining source

assessments are not consistent with the guidance set out in 20

C.F.R. § 404.1527 and relevant Third Circuit caselaw. See, e.g.,

Morales, 225 F.3d at 317.

This problem is not offset by the ALJ’s reference to

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activities of daily living. The ALJ states that he finds no

convincing evidence to support Dr. McLaughlin’s manipulative

limitations in part because Plaintiff has functioned adequately

with activities of daily living with the weakness in her right

upper extremity. (R. 27.) This is not persuasive support for his

determination in that an ability to accommodate manipulative and

upper extremity limitations in the daily activity context does not

necessarily mean that the limitations will not impact the demands

of a full-time job where an individual may be required to

accomplish tasks in a timely and specific manner. Thus, without

more explanation and analysis, this basis for the ALJ’s

determination cannot be considered substantial support. 

Because the reasons provided by the ALJ for discounting the

treating and examining source opinions are not supported by a fair

reading of the record and are not consistent with relevant caselaw

and pertinent regulations, the weight afforded these opinions is

not supported by substantial evidence. 

The ALJ’s finding that Dr. Mari-Mayans evaluation is entitled

to greater weight than that of the treating and examining sources

is also problematic because substantial evidence does not support

the reason provided for the reliance, i.e., “the objective medical

evidence and overall record” supports Dr. Mari-Mayans’ opinion. 

(R. 27.) The only objective assessments of Plaintiff’s right upper

extremity show muscle strength and grip pressure weakness. (R.

345, 461.) Based upon his examination and range of motion testing,

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Dr. McLaughlin identified resulting limitations in right hand and

upper extremity functioning. (R. 341-53.) The objective basis for

Dr. McLaughlin’s opinion undermines both the ALJ’s conclusion that

there is “no convincing evidence” to support manipulative

limitations and also undermines Dr. Mari-Mayans’ assessment that

Dr. McLaughlin appeared to rely heavily on the subjective report of

symptoms and limitations. (R. 27, 57.) Dr. Mari-Mayans’

discounting of Dr. McLaughlin’s opinion on the basis that it was an

isolated examination is also unfounded to the extent it relates to

Plaintiff’s upper extremity weakness and manipulative limitations

in that evidence shows the weakness is chronic and no medical

evidence indicates greater abilities than those objectively

assessed by Dr. McLaughlin. Because Dr. Mari-Mayans’ explanation

for his assessment is not well supported and he did not consider

all of the pertinent evidence, see 20 C.F.R. § 404.1527(c)(3), I

conclude the ALJ’s assignment of significant weight to the opinion

is not supported by substantial evidence.

This analysis shows that the ALJ did not properly assess the

medical evidence and medical opinions. It appears that he has

impermissibly substituted his lay opinion, in part based on

speculation, for that of the treating and examining sources

regarding the limitations associated with Plaintiff’s right upper

extremity problem, and this he cannot do. Morales, 225 F.3d at

317. Thus, I cannot conclude that his RFC determination is

supported by substantial evidence. 

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Defendant appears to argue that any error in the ALJ’s RFC

determination would be harmless because Plaintiff’s ability to do

the jobs identified by the ALJ would not be diminished by his right

upper extremity limitations. (R. 18-19.) While the VE testified

that Plaintiff could perform the exemplary sedentary jobs with the

added limitation that she could not push or pull (R. 47), he did

not address manipulative limitations. This is significant in that

Defendant does not refute Plaintiff’s assertion that sedentary

occupations generally require bilateral manual dexterity. (Doc. 11

at 20 (citing Doc. 10 at 16).) Rather, Defendant states that 

substantial evidence supports the ALJ’s

finding that Plaintiff’s impairments include

residual right-sided weakness from childhood

stroke with no additional manipulative

limitations (Tr. 22). As previously

discussed, Plaintiff performed substantial

gainful activity for fifteen years with

residual right-sided weakness, and there is

no evidence of record that her condition has

worsened (Tr. 24).

(Doc. 11 at 20.) As I have previously pointed to the problems with

reliance on these assertions, I cannot find the ALJ’s error

regarding the RFC and its step five impact harmless. Therefore,

remand is required.

B. Credibility

Plaintiff criticizes the ALJ’s credibility finding on several

bases, including the record support for Plaintiff’s claims

regarding fatigue and her work history. (Doc. 10 at 17.) 

Defendant maintains the ALJ did not err in his credibility

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Case 3:15-cv-01744-RPC Document 12 Filed 02/11/16 Page 26 of 27
evaluation. (Doc. 11 at 20.) As I have determined that remand is

required, only brief discussion regarding the ALJ’s credibility

finding is warranted. 

ALJ Cutter states there is no medical evidence to support

Plaintiff’s allegation that she is fatigued all day, every day. 

(R. 26.) This may be true to a point, but the ALJ does not mention

the fact that Plaintiff has been treated for anemia since she was

hospitalized in March 2013 and anemia is consistently listed as an

ongoing medical problem since that time. See supra pp. 7-9. As

this may be probative evidence related to fatigue, the ALJ should

have considered it and it should be addressed upon remand. 

Discussion of a claimant’s work history is not required and

the case would not be remanded on this basis alone. However,

because the case is remanded on other bases, the ALJ should also

address this issue. 

V.Conclusion

For the reasons discussed above, Plaintiff’s appeal is

properly granted and this matter is remanded to the Acting

Commissioner for further consideration. An appropriate Order is

filed simultaneously with this action.

S/Richard P. Conaboy

RICHARD P. CONABOY

United States District Judge

DATED: February 11, 2016

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