IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD H. FREEMAN, : Case No. 4:14-CV-01581

:

Plaintiff, : (Judge Brann)

:

v. :

:

CAROLYN W. COLVIN, :

ACTING COMMISSIONER OF :

SOCIAL SECURITY :

:

Defendant. :

MEMORANDUM

June 15, 2015

I. Introduction

Plaintiff, Ronald H. Freeman (“Freeman”) has filed this action seeking review

of a decision of the Commissioner of Social Security (“Commissioner”) denying his

claim for social security disability insurance benefits (“DIB”).

Disability benefits are paid to an individual if that individual is disabled and

“insured,” that is, the individual has worked long enough and paid social security

taxes. The last date that a claimant meets the requirement of being insured is

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commonly referred to as the “date last insured.” Freeman met the insured status

requirements through at least December 31, 2016. Tr. 17.

1

Freeman protectively filed his application for DIB on August 7, 2012. Tr. 114-

17. Freeman claims that he became disabled on October 26, 2011. Tr. 164. Freeman

has been diagnosedwith several impairments, including psoriatic arthritis, obstructive

sleep apnea, restless leg syndrom, carpel tunnelsyndrome, osteoarthritisin his knees,

diabetes, depression, obesity, high cholesterol, allergies, and bilateral cataracts. Tr.

18. On November 15, 2012, Freeman’s application wasinitially denied by the Bureau

of Disability Determination. Tr. 87. 

On February 5, 2013, Freeman requested a hearing before an administrative

law judge (“ALJ”). Tr. 97. The ALJ conducted a hearing on February 12, 2014,

where Freeman was represented by counsel. Tr. 41-79. On March 24, 2014, the ALJ

issued a decision denying Freeman’s application. Tr. 12-24. On June 24, 2014, the

Appeals Council declined to grant a review. Tr. 1-11. Freeman filed a complaint

before this Court on August 12, 2014. Supporting and opposing briefs were

submitted and this case became ripe for disposition on April 21, 2015.

Freeman appeals the ALJ’s decision on two grounds: (1) the ALJ failed to

properly assess all of the relevant facts before making a disability finding, and (2) the

References to “Tr. ” are to pages of the administrative record filed by the Defendant as part of 1

the Defendant’s Answer.

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ALJ improperly determined that Freeman had no limitations from his upper

extremities or sleep impairments. For the reasons set forth below, the decision of the

Commissioner is vacated and remanded for further proceedings. 

II. Statement of Relevant Facts

Freeman is 63 years of age, graduated high school and attended college for one

year but did obtain a degree or certification. Tr. 49. He trained as an auto mechanic

in 1973, but did not work in that field. Id. Freeman has had past relevant work as a

customer relations coordinator for a soda company from June 1981 until February

1999, as a human resource manager for a nursing home from March 1999 until

January 2011, and briefly as a machine operator in October 2011. Tr. 134, 158, 182-

83. Freeman reported that he lived with a friend, that he remained able to visit his

stepmother daily, prepared simple meals, did his laundry, mowed the grass on a riding

mower, walked his dog three blocks daily, shopped, handled his finances, went to

church weekly, and gave sermons. Tr. 48, 63-66, 145-52. Freeman collected

unemployment compensation, (“UC”) after his alleged disability onset date until the

end of June 2012. Tr. 50. Freeman testified that during that time period, he applied

for jobs in human resources and retail, went on one interview, but was not offered

the position. Tr. 50-51.

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A. Freeman’s Physical Impairments

On October 5, 2011, Freeman saw Brian A. Delvecchio, D.O., for osteoarthritis

and psoriatic arthritis. Tr. 591. Since his last visit, Freeman was doing well overall

from a skin/joint standpoint while on Methotrexate. Id. Freeman was seeing an

orthopedist for a left knee internal derangement and moderate-to-severe joint space

narrowing. Id. Freeman had also had a series of Euflexxa injections in his knee but

the benefits according to Freeman, were marginal at best. Id. He also reported that

subsequent intra-articular steroid injections he had received helped to reduce his knee

pain. Id. Freeman was also taking Tramadol occasionally for the knee pain and this

was proving to be “quite effective.” Id. After conducting a physical and a

musculoskeletal examination of which the findings were normal, Dr. Delvecchio

continued the Methotrexate treatment for Freeman’s psoriatic arthritis. Tr. 592.

Ten months later on August 6, 2012, Freeman followed up with Dr.

Delvecchio. Tr. 613-15. Freeman noted some right wrist pain and denied any recent

injury or trauma to the area. Tr. 613. On a musculoskeletal examination, Freeman

was tender in the right wrist radial area. Tr. 614. Dr. Delvecchio then injected

Freeman’s right wrist with Depomedrol. Id. 

On January 3, 2013, x-rays were taken of Freeman’s knees. Tr. 939-40. The

right knee x-ray showed lateral and patellofemoral compartment degenerative

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changes, which showed no significant change from x-rays taken previously in

December 2009. Tr. 940. The left knee x-ray also showed tricompartmental

degenerative changes that were similar to the x-rays taken in December 2009. Tr.

940.

Freeman nextsaw Dr. Delvecchio on January 29, 2013. Tr. 1009. His physical

and musculoskeletal examination was normal, with no tender or swollen joints. Tr.

1011. There was no evidence of active inflammatory arthritis and Freeman described

his pain level as a four out of ten. Tr. 1011. An MRI taken of Freeman’s right wrist

was also examined and showed a number of erosions which were consistent with

Freeman’s history of psoriatic arthritis. Tr. 943. On February 6, 2013, Dr.

Delvecchio filled a Department of Public Welfare form on Freeman’s behalf. Tr.

943-44. He opined that based on objective medical tests and Freeman’s medical

history, Freeman wastemporarily disabled fromMarch 1, 2013 to March 1, 2014. Id. 

Freeman also received a Depomedrol injection and completed a series of Synovisc

injections in both knees on February 11, 2013. Tr. 987, 1005, 1008. 

On April 16, 2013, Freeman saw Daniel R. Feldman, M.D. for a two-month

follow-up visit. Tr. 1004. Freeman reported decreased knee pain after the injections,

but complained that his immobility continued. Tr. 1004. They discussed the

possibility of a total knee replacement “TKR” but Freeman wanted to try another

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round of Synovisc injections before pursuing surgery. Id. 

Freeman next saw Dr. Delvecchio on August 1, 2013 for further evaluation of

his osteoarthritis and psoriatic arthritis. Tr. 997. Freeman noted occasional right

wrist pain and that his steroid injections were without much benefit. Id. Dr.

Delvecchio continued with Methotrexate. Tr. 1000. On August 13 and 21, 2013,

Freeman received bilateral knee injections. Tr. 984-85, 987.

Freeman was evaluated for poorsleep with GhulamKhaleeq, M.D., on August

13, 2013. Tr. 988-93. Freeman informed Dr. Khaleeq that since “retiring” his sleep 2

had worsened. Tr. 989. He reported that he had difficulty falling asleep and when

he did fall asleep, it varied from an hour to 16 hours. Id. He also told Dr. Khaleeq

that even though he used a CPAP machine every night, he took it off in the middle

of the night. Id.

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Freeman also reported having restless leg symptoms which interrupted his

sleep. Id. On examination, Dr. Khaleeq assessed moderate obstructive sleep apnea

Freeman had a history of moderate sleep apnea. The initial study on January 6, 2010 showed 2

moderate obstructive sleep apnea. Tr. 988. His CPAP trial on January 17, 2010, showed

improvement of symptoms with a pressure of 8cm H2O . Tr. 988-89.

 Continuous positive airway pressure therapy (“CPAP”) uses a machine to help a person who 3

has obstructive sleep apnea (OSA) breathe more easily during sleep. A CPAP machine increases

air pressure in the throat so that the airways do not collapse when breathing in. American Sleep

Association, What is Sleep Apnea, available at

https://www.sleepassociation.org/patients-general-public/obstructive-sleep-apnea_/. (last visited

June 8, 2015).

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on CPAP therapy, inadequate sleep hygiene, obesity, diabetes and hypertension. Tr.

993. Dr. Khaleeq stressed to Freeman that he should be more compliant with his

CPAP therapy. Id. Furthermore, Dr. Khaleeq remarked that since Freeman’s

retirement has resulted in an irregular sleep pattern, he wasto establish a standard bed

and wake up time with no napping in between. Id. Freeman was also advised to lose

weight, avoid driving, operating heavy machinery or engaging in any activity that

requires full alertness if feeling sleepy, drowsy or otherwise impaired. Id.

On December 18, 2013, Freeman followed up with Dr. Khaleeq. Tr. 965. He

reported that he was feeling the same, trying to use the CPAP machine every night

but, in fact, only using it for 3-4 hours and not feeling well rested. Id. Freeman also

reported that his sleep was interrupted multiple times and his restless leg symptoms

had not abated. Id. Dr. Khaleeq’s diagnosis remained unchanged and, again, he

stressed compliance with the CPAP machine. Tr. 968. Dr. Khaleeq ordered a CPAP

retitration study and repeated his advice to Freeman to lose weight, avoid driving,

operating heavy machinery or engaging in any activity that requires full alertness if

he was feeling sleepy, drowsy or otherwise impaired. Tr. 968-69.

On January 23, 2014, Freeman participated in a sleep study. Tr. 1028-39. The

physician recommended that Freeman start on a BiPAP machine, consider a new

course of treatment to decrease arousals from sleep and to improve sleep

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fragmentation and to lose weight under medical supervision. Tr. 1028. He was also

advised not to drive or engage in activities that require full attention while feeling

drowsy. Id.

B. Consultative Examination and the State Agency Opinion

On October 30, 2012, Freeman had a consultative physical examination with

David Yang Go, M.D. Tr. 928-38. Freeman was asked to remove his shirt, socks,

and laced-up shoes. Tr. 930. Dr. Go noted that these fine finger motions were

completely normal and he was able to remove his shirt, socks and shoes without any

signs ofstiffness or pain. Id. Hislegs had no edema, there were no deformities of the

finger joints and wrists and no inflamation of the joints. Id. His knees were also

normal with no swelling or inflammation. Id. Freeman had a normal range of neck,

shoulder, elbow, wrist, hip, back, knee, and ankle motion. Tr. 930-31. Freeman had

a good and strong thumb to fifth finger opposition and opposition to all fingers. Tr.

931. His spinal sensory examination was normal and his straight leg raising

examination was negative. Id.

Dr. Go assessed Freeman with psoriatic arthritis which was well controlled

with his current course of medications. Id. Freeman had no apparent problems in

the use of his hands, arms, back neck, hips or legs. Id. Dr. Go opined that Freeman’s

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standing, walking, sitting and postural activities were unlimited. Tr. 931, 933-34. 

He put no limitations on Freeman’s lifting, carrying, pushing and pulling but noted

that consideration must be given to Freeman’s age, as he was then 61years old and

not in very good overall condition. Tr. 931, 933. Finally, Dr. Go opined that other

physicalfunctions such as reaching and fingering were within normal limits, and gave

no environmental restrictions. Tr. 931. 934. 

On November 15, 2012, Leo P. Potera, M.D., a state agency physician,

reviewed Freeman’s medical records together with Dr. Go’s report and opined that

Freeman remained able to perform light work; his pushing/pulling waslimited in his

arms; he could frequently climb ramps/stairs, balance and stoop and occasionally

climb ladders/ropes/scaffolds, kneel crouch and crawl. Tr. 84-85. 

C. Administrative Hearing

On February 12, 2014, Freeman’s administrative hearing was conducted. Tr. 

42-79. Freeman first testified that as a result of his sleep apnea, he was unable to stay

awake during the daytime or to fully concentrate on his work related tasks. Tr. 52-53. 

He explained that while at work, he had fallen asleep looking at his computer screen

and during meetings. Tr. 53. Freeman also testified that he had to take work home

often so he could complete any unfinished reports from the day’s tasks. Tr. 58. 

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Freeman also testified that the pain in his wrists affected his ability to perform

his duties at work. Tr. 59. He could not perform the paperwork and computer work

necessary for his position as HR manager. Tr. 59. Freeman testified that he could use

his hands to perform non-constant typing or writing for about an hour before needing

to stop for the day. Tr. 67. He also indicated that his hands had lingering problems

the following day after using his hands. Tr. 67-68. Freeman testified that he had

difficult lifting things, repetitive activities made his hands cramp and although he was

capable of daily activities such as showering, getting dressed, cooking or shopping,

these tasks took longer to complete because of the pain in his wrist. Tr. 63.

When asked to describe any limitations with regard to the arthritisin his knee,

Freeman testified that he could stand for about 15 to 20 minutes without having to sit,

although it was painful to do so. Tr. 60. He explained that he could not sit at his desk

for prolonged periods of time due to restlessness and pain in his knees. Tr. 59. 

Freeman also explained that his tolerance for pain depended on how much effort he

had exerted previously. Tr. 60. For example, if he stood for half an hour and then sat

down, he would be unable to stand for the same length of time, the next time around.

Id.

Freeman testified that the nursing home where he last worked was owned by

his ex-wife’s family. Tr. 52. He testified that he believed that his family connections

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allowed him to maintain his job for as long as he did. Freeman believed that the

management accommodated his sleep apnea allowing him to miss meetings. Tr. 52-

54. He continued working at this position for a year after he and his wife divorced;

he was then terminated by his ex-wife’s brother. Tr. 52. 

III. Discussion

In an action under 42 U.S.C. § 405(g) to review the Commissioner’s decision

denying a plaintiff’s claim for disability benefits, the district court must uphold the

findings of the Commissioner so long as those findings are supported by substantial

evidence. Substantial evidence “does not mean a large or considerable amount of

evidence, but ‘rather such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565 (1988),

quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938). Substantial

evidence has been described as more than a mere scintilla of evidence but less than

a preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). In an

adequately developed factual record substantial evidence maybe "something lessthan

the weight of the evidence, and the possibility of drawing two inconsistent

conclusions from the evidence does not prevent an administrative agency's finding

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from being supported by substantial evidence." Consolo v. Federal Maritime

Commission, 383 U.S. 607, 620 (1966). 

Substantial evidence exists only "in relationship to all the other evidence in the

record," Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981), and "must take into

account whatever in the record fairly detracts from its weight." Universal Camera

Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not

substantial evidence if the Commissioner ignores countervailing evidence or fails to

resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064

(3d Cir. 1993). The Commissioner must indicate which evidence was accepted,

which evidence wasrejected, and the reasons for rejecting certain evidence. Johnson

v. Comm’r of Soc. Sec., 529 F.3d 198, 203 (3d Cir. 2008). Therefore, a court

reviewing the decision of the Commissioner must scrutinize the record as a whole. 

Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).

The Commissioner utilizes a five-step process in evaluating disability

insurance benefits claims. See 20 C.F.R. § 404.1520; Poulos v. Comm’r of Soc. Sec.,

474 F.3d 88, 91-92 (3d Cir. 2007). This process requires the Commissioner to

consider, in sequence, whether a claimant (1) is engaging in substantial gainful

activity, (2) has an impairment that is severe or a combination of impairments that is

severe, (3) has an impairment or combination of impairmentsthat meets or equalsthe

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requirements of a listed impairment, (4) has the residual functional capacity to return

to his or her past work and (5) if not, whether he or she can perform other work in the

national economy. See 20 C.F.R. § 404.1520. The initial burden to prove disability

and inability to engage in past relevant work rests on the claimant; if the claimant

meets this burden, the burden then shifts to the Commissioner to show that a job or

jobs exist in the national economy that a person with the claimant’s abilities, age,

education, and work experience can perform. Mason, 994 F.2d at 1064. 

A. The ALJ’s Residual Functional Capacity Assessment.

Freeman argues that the ALJ did not consider Freeman’s carpel tunnel

syndrome and failed to include any upper extremity limitations in the residual

functional capacity assessment. As a threshold matter, Freeman testified that he had

arthritisin his wrists and that he had beenmisdiagnosed with carpel tunnelsyndrome. 

Tr. 63, 69. 139. Contrary to Freeman’s assertions, the ALJ specifically

accommodated Freeman’s wrist arthritis throughoutthe sequential evaluation process. 

At step two, the ALJ found Freeman’s osteoarthritis and psoriatic arthritis to be

severe. Tr. 17. In the residual functional capacity discussion, the ALJ considered

Freeman’s testimony that he had continuous pain in his wrists which had worsened

over time. Tr. 21. The ALJ acknowledged that Freeman’s right wrist x-ray showed

evidence of erosions consistent with his history of psoriatic arthritis. Tr. 21.

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Furthermore, when considering the physical residual functional capacity provided by

Dr. Potera, the ALJ outlined limitations that were significantly more generous than

those recommended by Dr. Potera. Tr. 22. Similarly when considering Dr. Go’s

medical source statement, the ALJ determined that greater limitations were

appropriate and incorporated Freeman’s hand/wrist complaints. Tr. 33. The residual

functional capacity assessment accommodated limitations in Freeman’s upper

extremities. The ALJ’s analysis is sound and supported by substantial evidence. 

B. ALJ’s classification of Freeman’s sleep impairments.

Freeman contends that the ALJ erred in holding that his sleep apnea and

restless leg syndrome were non-severe impairments at step two of the sequential

evaluation process. The determination of whether a claimant has any severe

impairment at step two of the sequential evaluation process is a threshold test. 20

C.F.R. §404.1520(c). If a claimant has no impairment or combination ofimpairments

which significantly limit the claimant's physical or mental abilities to perform basic

work activities, the claimant is “not disabled” and the evaluation process ends at step

two. Id. If a claimant has any severe impairment, the evaluation process continues. 

20 C.F.R. § 404.1520(d)-(g). 

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A failure to find a severe medical condition at step two will not render a

decision defective if some other medical condition wasfound severe atstep two. See,

Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005). However, all of the

medically determinable impairments both severe and non-severe must be considered

at step two and then at step four when setting the residual functional capacity. The

regulations mandate such consideration and this Court has repeatedly so indicated. 

See, e.g., Shannon v. Astrue, 4:11–CV–00289, 2012 WL 1205816, at *10 (M.D.Pa.

April 11, 2012) (Rambo, J.); Bell v. Colvin, 3:12–CV–00634, 2013 WL 6835408, at

*8 (M.D.Pa. Dec.23, 2013) (Nealon, J.); Stape v. Colvin,Civil No. 3:13–CV–02308,

2014 WL 1452977, at *6 (M.D.Pa. April 14, 2014) (Brann, J.); 20 C.F.R. §§

404.1523 and 404.1545(a)(2).

Here the ALJ’s failure to find Freeman’s sleep apnea and restless leg syndrome 

severe does not render his decision defective. The ALJ found two of Freeman’s other

impairments to be severe and proceeded past step two of the evaluation process.

There is, however, no evidence that the ALJ considered these sleep impairments when

setting the residual functional capacity. The ALJ’s only reference to Freeman’s sleep

apnea and restless leg syndrome is that Freeman’s compliance with the CPAP and

BiPAP machine was questionable. Tr. 18. 

4

Social Security Rulings mandate that, where an individual has not complied with prescribed 4

treatment, “a determination must also be made as to whether or not failure to follow prescribed

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The record demonstratesthat Freeman saw Dr. Khaleeq for his sleep apnea and

restless leg syndrome. During his visits with Dr. Khaleeq, Freeman was asked to

comply with the CPAP and BiPAP machine, and was also told not to engage in

activities that require full alertness if he was feeling sleepy, drowsy or otherwise

impaired. Tr. 968-69. The ALJ never acknowledged this opinion nor did he

articulate a basis for rejecting it. The ALJ must provide “good reasons” for rejecting

a treating source’s opinion. 20 C.F.R. §404.1527(c); see also Plummer v. Apfel. 186

F.3d 422, 427 (3d Cir. 1999)(An ALJ “cannot reject evidence for no reason or for the

wrong reason.”) (citing Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)). The

Court finds that the ALJ improperly ignored Dr. Khaleeq’s opinion and as a result

renders his residual functional capacity assessment improper. 

C. The ALJ’s Credibility Determination

Freeman finally challenges the ALJ’s credibility determination because the

ALJ failed to consider all the pertinent facts, misstated facts and improperly

considered certain facts. First, Freeman argues that the ALJ erred by failing to

articulate why his impressive work record did not support his credibility. Freeman

treatment is justifiable.” SSR 82–59. The ALJ must first conclude that medication would be

expected “to restore ability to engage in any SGA[.]” Id. If the ALJ finds that it would, he or she

must then appropriately develop the record to ascertain whether “the claimant . . . is justifiably

failing to undergo the treatment prescribed.” Id. The ALJ failed to develop the record in such a

manner.

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is correct that the testimony of a claimant with a long, productive work history will

be given substantial credibility. A claimant’s work history is, however, one of the

many factors the ALJ is to consider in assessing an individual’s subjective

complaints, 20 C.F.R. §404.1529(c)(3), the ALJ is not required to equate a long work

history with credibility. See Christil v. Astrue, 2008 WL 4425817, *12 (W.D. Pa.

Sept. 30, 2008). Furthermore, it is well established that the ALJ need not address

every piece of evidence in the record. Hurr v. Barnhart, 94 Fed. Appx. 130, 133 (3d

Cir. 2004);see Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2004) (An

ALJ may not reject pertinent evidence without explanation, but does not need to cite

all evidence the claimant presents). Therefore, while Freeman’s work historywas one

factor out of many in determining his credibility, the ALJ was under no duty to

discuss Freeman’s work history. 

 Freeman next argues that the ALJ erred in discounting his credibility by

considering his receipt of UC benefits as being inconsistent with his assertion that he

was unable to work as a result of his disability. Tr. 22. In support of his position,

Freeman relies on a memorandum entitled “Receipt of Unemployment Insurance

Benefits by Claimant Applying for Disability Benefits” which states that the

“[r]eceipt of unemployment benefits does not preclude the receipt of Social Security

Benefits.” ECF No. 13-1. Memorandum Dated Nov. 15, 2006 from Frank A.

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Cristaudo, Chief Administrative Law Judge. However, the same memorandum also

states that “[t]he receipt of unemployment benefits is only one of many factors that

must be considered in determining whether the claimant is disabled.” (Id.). It is

therefore entirely proper for the ALJ to consider the receipt of UC benefits as

inconsistent with a claim of disability during the same period. See Meyers v.

Barnhart, 57 F. App’x 990, 991 (3d Cir. 2003); see e.g., Johnson v. Chater, 108 F.3d

178, 180 (8 Cir. 1997)(application for unemployment compensation benefits can th

adversely affect a claimant’s credibility because of admission of ability to work

requirement for unemployment benefits). Accordingly, the Court finds that the ALJ

considered the receipt of UC in a permissible manner, as a non-dispositive factor to

assess Freeman’s credibility.

Freeman also believes a remand is necessary because the ALJ indicated that the

record did not reflect any significant progression in his condition. Tr. 22. Freeman

contends that imaging studies could not show any progression because he had end

stage disease in his knee joints. Admittedly, imaging studies cannot show

progression after a diagnosis of end stage joint disease, however the ALJ’s analysis

was not limited to this single factor. The ALJ does not refer only to imaging studies,

but also to benign physical and musculoskeletal examinations. Tr. 22. The ALJ also

supports his statement by pointing to the fact that Freeman’s conditions are well

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controlled with Methotexate, Ultram and periodic injections for his knee. Tr. 22. The

ALJ’s evaluations of Freeman’s subjective complaints were reasonably consistent

with the objective medical evidence. 

Freeman next argues that the ALJ erred by incorporating incorrect facts into

his credibility determination. Specifically, the ALJ reported that Freeman lived alone

when the record showed that Freeman lived with his ex-girlfriend and her two

children when he applied for benefits, and wasstill living with his “friend” at the time

of his hearing. Tr. 22, 48, 145. The ALJ also mistakenly believed that a TKR was

never discussed in the medical record and this counted against the severity of

Freeman’s complaints. Tr. 22. The United States Court of Appeals for the Third

Circuit has made clear that remand of a case is not required where stricter compliance

with the social security ruling or regulations would not have changed the case’s

outcome. Rutherford 399 F.3d at 553 (refusing to remand where stricter compliance

with social security ruling would not have changed the outcome of the case). “No

principle of administrative law ‘require[s] that we convert judicial review of agency

action into a ping-pong game’ in search of the perfect decision.” Coy v. Astrue, No.

Civ.A.08–1372, 2009 WL 2043491, at *14 (W.D.Pa. July 8, 2009) (quoting NLRB

v. Wyman–Gordon Co., 394 U.S. 759, 766 n. 6, 89 S.Ct. 1426, 22 L.Ed.2d 709

(1969)). 

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In this case, were the Court to remand for a new credibility analysis based on

Freeman’s living arrangements, the ALJ could simply correct or leave it out entirely

and the same outcome would result. It does not rise above the level of harmless error.

See Rutherford, 399 F.3d at 553. Living with a friend did not affect Freeman’s

ability to tend to his personal care and to take care of the household chores. Freeman

was able to mow the lawn, prepare meals, shop in stores, manage his finances, watch

television, use a computer and write and give sermons for his church. On the other

hand, the same cannot be said for stating that there was no discussion of a TKR when

the record reflects the opposite. The inclusion of this fact could change the outcome

of the case and remand is necessary to address it.

Freeman next claims that the ALJ should not have made a finding that Dr.

Delvecchio had opined that Freeman was disabled “only to help him gain benefits.” 

Pl. Br. at 11. The ALJ gave little weight to Dr. Delvecchio’s opinion because he

concluded that “physicians have both an altruistic and financial interest in aiding their

patients.” Tr. 23. Finally, the ALJ concludes that Freeman’s status as “disabled” is

an issue clearly reserved to the Commissioner. Tr. 23. The ALJ must provide “good

reasons” to reject treating source opinions. 20 C.F.R 404.1527(c)(2). Here, the ALJ

cited Dr. Delvecchio’s “altruistic and financial interest” and this, unfortunately,

constitutes rejecting evidence for the wrong reason. This assertion is pure speculation

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and is not supported by any evidence in the record. There is no evidence to suggest

that Dr. Delvecchio based his opinion on anything other than his best professional

judgment and it was inappropriate for the ALJ to engage in this type of

rationalization. See Shedden v. Astrue. 4:10-CV-2525, 2012 WL 760632, at *10

(M.D. Pa. Mar. 7, 2012)(Rambo, J.)

Finally, Freeman argues that the ALJ erred by concluding that the only reason

why Freeman’s last employment wasterminated was due mainly to family issues. Tr.

22. The ALJ also noted that Freeman worked in a family run business and was

terminated when he divorced his wife. Tr. 22. At trial, Freeman explained that he

continued to work for the company for a year after his divorce. Tr. 52-52. Freeman

believed that even though he had difficulties with his hands and sleep impairment, he

was able to continue working there because of his familial relationship. There is

nothing in the record that substantiates the ALJ’s assessment that Freeman was

terminated mainly due to family issues with his ex-wife and her family. The ALJ’s

assertion appears to be entirely speculative and this is an impermissible manner in

which to evaluate Freeman’s credibility. 

Generally, an ALJ’s findings based on the credibility of the applicant are to be

accorded great weight and deference. Coleman v. Comm’r of Soc. Sec., 440 F. App’x

252, 253 (3d Cir. 2003) (quoting Reefer v. Barnhart, 326 F. 3d 376, 380 (3d Cir.

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2003)). Credibility determinations are the province of the ALJ and should only be

disturbed if not supported by substantial evidence. Pysher v. Apfel, No. 00-1309,

2001 WL 793305, at *3 (E.D. Pa. July 11, 2001)(citing Van Horn v. Schweiker, 717

F.2d 871, 973 (3d. Cir. 1983). In light of the above, the ALJ’s credibility findings

were not fully explained and supported by substantial evidence. Consequently, the

case must be remanded in order for the ALJ to reassess Freeman’s credibility.

IV. Conclusion

A review of the administrative record reveals that the decision of the

Commissioner is not supported by substantial evidence. Pursuant to 42 U.S.C. §

405(g), the decision of the Commissioner vacated and remanded for further

proceedings. An appropriate Order will be entered. 

BY THE COURT:

s/Matthew W. Brann 

Matthew W. Brann

United States District Judge

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