REPORT AND RECOMMENDATION

JOSEPH F. LEESON, JR., Magistrate Judge.

Plaintiff, Phillip H. West, filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act").

Plaintiff filed a Brief and Statement of Issues in Support of Request for Review ("Pl.'s Br."), defendant filed a Response to Plaintiff's Request for Review ("Def.'s Br."), and plaintiff filed a reply thereto ("Pl.'s Reply"). For the reasons set forth below, the court recommends that plaintiff's Request for Review be GRANTED.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff filed an application for DIB on October 26, 2016, alleging disability beginning October 3, 2016. (R. 247-48.)2 Plaintiff's claim was denied initially and he filed a request for a hearing. (R. 62-97, 103-09.) A hearing was convened on April 15, 2018, before Administrative Law Judge ("ALJ") John Gehring, but was postponed shortly after it began so that plaintiff could obtain representation. (R. 34-39.) A second hearing was held on August 16, 2018, before ALJ Gehring. (R. 40-61.) Plaintiff, represented by counsel, appeared and testified. Donna Nealon, a vocational expert ("VE"), also appeared and testified. In a decision dated October 25, 2018, the ALJ found that plaintiff was not disabled under the Act. (R. 20-33.) The ALJ made the following findings:

(R. 22-28.)

Plaintiff filed a request for review of the decision of the ALJ that was denied and the ALJ's decision became the final decision of the Commissioner. (R. 1-6, 233-36.) Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

II. STANDARD OF REVIEW

The role of this court on judicial review is to determine whether there is substantial evidence in the record to support the Commissioner's decision. Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing 42 U.S.C. § 405(g)), cert. denied, 571 U.S. 1204 (2014); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is more than a mere scintilla of evidence, but may be less than a preponderance of the evidence. Jesurum v. Sec'y of U.S. Dep't of Health and Human Serv., 48 F.3d 114, 117 (3d Cir. 1995). This court may not weigh evidence or substitute its conclusions for those of the fact-finder. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002) (citing Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). As the Third Circuit has stated, "so long as an agency's fact-finding is supported by substantial evidence, reviewing courts lack power to reverse . . . those findings." Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).

To be eligible for benefits, the claimant must demonstrate an "inability to engage in any 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 than 12 months." 42 U.S.C. § 423(d)(1)(A). Specifically, the impairments must be such that the claimant "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." 42 U.S.C. § 423(d)(2)(A). Under the Act, the claimant has the burden of proving the existence of a disability and must furnish medical evidence indicating the severity of the impairment. 42 U.S.C. § 423(d)(5).

The Social Security Administration employs a five-part procedure to determine whether an individual has met this burden. 20 C.F.R. § 404.1520.3 This process requires the Commissioner to consider, in sequence, whether a claimant: (1) is currently employed; (2) has a severe impairment; (3) has an impairment which meets or equals the requirements of a listed impairment; (4) can perform past relevant work; and (5) if not, whether the claimant is able to perform other work, in view of his age, education, and work experience. See id. The claimant bears the burden of establishing steps one through four of the five-step evaluation process, while the burden shifts to the Commissioner at step five to show that the claimant is capable of performing other jobs existing in large numbers in the national economy. Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007).

III. BACKGROUND

At the commencement of the August 16, 2018 administrative hearing, plaintiff's counsel informed the ALJ that plaintiff's impairments followed a severe motorcycle accident which resulted in several fractures requiring multiple surgeries and ensuing low-back, knee, and shoulder pain and weakness. (R. 43.) Plaintiff avers that he is unable to return to his past work due to his injuries, and due to his age, should be found disabled under the Commissioner's regulations. (R. 43-44.)

Plaintiff testified that he was born on September 29, 1957, and thus was sixty years old on the date of the administrative hearing. (R. 46.) At the time of the administrative hearing, plaintiff lived with a member of his church.4 (R. 45.) Plaintiff earned an associate's degree in sociology and psychology. (R. 46-47.) Plaintiff does not have a driver's license; he was driven to the administrative hearing by the church member with whom he lived. (R. 47.)

With respect to his daily activities, plaintiff indicated that he does not perform any household chores such as cooking, shopping, or cleaning. (R. 53.) Plaintiff does not have any pets and does not participate in social clubs. (R. 53-54.) He sometimes watches television, but explained that he wears glasses and watching television bothers his eyes. (R. 53.)

With respect to his work history, plaintiff testified that when he worked for Pennsylvania Transit Company, he was a supervisor and was responsible for scheduling transportation for the firm's clients. (R. 48, 52.) In this job, plaintiff also was required to inspect vehicles and to fill-in as a driver if needed in an emergency. (R. 48.) In addition, plaintiff worked for Security Alarm Monitoring Incorporated and Universal Atlantic Systems Incorporated, alarm systems companies that monitored residential and commercial properties. (R. 49.) Plaintiff was responsible for implementing the proper protocol when a signal was activated. Id. Plaintiff's past work also included employment by a technical staffing company that placed him with Vanguard as a global support specialist. (R. 49-50.) In this role, plaintiff worked as a monitor and was responsible for assigning work crews to various tasks. (R. 50.) Plaintiff also worked for a trucking company, scheduling drivers and shipments. (R. 51.) This position required plaintiff to move among various departments of the building in which he worked. Id. In the year prior to the administrative hearing, plaintiff attempted to work as a parking lot cashier, but was unable to maintain such employment because he could not find private transportation to the job, and due to his impairments, was unable to utilize public transportation. (R. 52.)

In response to questioning by his attorney, plaintiff elaborated that he would be unable to perform the systems monitor jobs given his current condition because he would have difficulty remembering the proper protocols due to the side-effects of medication. (R. 55.) Additionally, plaintiff testified that he would be unable to perform the dispatcher job for similar reasons. (R. 55-56.)

When asked by the ALJ whether he could perform unskilled work such as dusting desks and emptying waste baskets for eight hours per day and forty hours per week, plaintiff indicated that he would be unable to perform such work because his thumb is dislocated and he is unable to lift anything that weighs greater than a gallon of milk. (R. 54.) Plaintiff also explained that he is unable to stoop or bend due to back pain, and that if he does bend, he experiences dizziness. Id. Plaintiff also described occasional sharp, shooting pains in his legs and right shoulder pain. Id. Moreover, the pain plaintiff experiences affects his ability to sit for long periods of time. (R. 56.) Plaintiff stated that he is most comfortable when laying down, and needs to lay down twice per day for approximately twenty to thirty-minute periods. (R. 57.)

The VE testified that plaintiff's past work as a "dispatcher, service, chief" is skilled, sedentary work pursuant to the Dictionary of Occupational Titles ("DOT"), but was performed by plaintiff at the medium level of exertion. (R. 58.) In addition, the VE classified plaintiff's work at J.W. Fleet as a "taxicab starter," which is semi-skilled, sedentary work, that plaintiff performed at the light level of exertion. Id. Plaintiff's past work also included employment as a "surveillance system monitor" which was unskilled, sedentary work that was performed by plaintiff at the light level of exertion. Id. The VE indicated that her testimony was consistent with the DOT. Id.

The ALJ asked the VE to consider a hypothetical individual of the same age, education, and work experience as plaintiff, who retains the residual functional capacity ("RFC") for medium work, but who is further limited as follows: "dealing with routine, simple work; of course, no working at heights; no hazardous machinery and no excessive exposure to fumes, dust, odors, temperature and humidity extremes." Id. The VE testified that such hypothetical individual could not perform any of plaintiff's past work, including the work as a surveillance system monitor because it is currently classified as a semi-skilled position. (R. 59.) However, the VE testified that the hypothetical individual could perform the following jobs: "laundry laborer" (for which there are approximately 402,000 jobs in the national economy), "hand packer" (for which there are approximately 701,000 jobs in the national economy), and "counter supply worker" (for which there are approximately 437,000 jobs in the national economy). Id.

In response to the ALJ's question, the VE also testified that the hypothetical individual could not perform substantial gainful employment if he were further limited in that he "would require unannounced breaks and would miss in excess of three days a month due to symptomology or medical treatment." Id. In response to questioning by plaintiff's attorney, the VE confirmed that the jobs she identified in response to the first hypothetical question are not in the same industry as plaintiff's past work, and furthermore, they are unskilled jobs. (R. 60.) The VE also confirmed that if a person were limited to simple, routine work and could not lift more than a gallon of milk, he would not be able to do anything more than unskilled, sedentary jobs. Id.

At the close of the hearing, the ALJ noted that he would keep the administrative record open for a period of time for the further submission by plaintiff of recent medical records. (R. 60-61.)

IV. DISCUSSION

The ALJ found that the evidence of record supports a finding that plaintiff has severe impairments but which do not meet or medically equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 23.) Ultimately, the ALJ concluded that plaintiff retains the residual functional capacity ("RFC") to perform a range of medium work as detailed in his decision. See id. Plaintiff presently contends that substantial evidence does not support the ALJ's decision. Specifically, plaintiff argues that the ALJ erred in formulating plaintiff's RFC. (Pl.'s Br. at 5-12; Pl.'s Reply at 1-4.) Defendant maintains that substantial evidence supports the decision of the ALJ. (Def.'s Br. at 3-10.)

Pursuant to the Commissioner's regulations, RFC refers to the most a claimant can do despite his limitations. 20 C.F.R. § 404.1545(a)(1). The RFC assessment must be based upon all relevant evidence, including medical records, medical source opinions, and a claimant's description of his own symptoms. The final responsibility for determining a claimant's RFC is reserved exclusively for the Commissioner, who will not give any special significance to the source of another opinion on this issue. 20 C.F.R. § 404.1527(d).5 Pursuant to the regulations in effect at the time of the ALJ's decision, an ALJ must give medical opinions the weight he deems appropriate based on factors such as whether the physician examined or treated the claimant, whether the opinion is supported by medical signs and laboratory findings, and whether the opinion is consistent with the record as a whole. See 20 C.F.R. § 404.1527.

When formulating plaintiff's RFC, the ALJ addressed the evidence of record pertaining to plaintiff's claims that he is unable to work due to various health issues. See R. 24-27. In a detailed decision, the ALJ analyzed, inter alia, plaintiff's testimony at the administrative hearing and the February 2016 and December 2016 Function Reports completed by plaintiff. (R. 24.) The ALJ also summarized the medical record evidence, see R. 24-26, and considered and analyzed the opinion of Michael Lombard, M.D., the State agency medical consultant who reviewed the evidence in January 2017, see R. 26, and who limited plaintiff to, inter alia, frequently lifting ten pounds and occasionally lifting twenty pounds, and standing, walking and sitting for six hours in an eight hour work day, see R. 85.

In his decision, the ALJ acknowledged that Dr. Lombard reviewed the evidence in January 2017 and found that plaintiff was limited to "lifting/carrying 10 pounds frequently and 20 pounds occasionally; to sitting, standing or walking about 6 hours each in an 8-hour workday; to occasionally performing postural activities; and to avoiding concentrated exposure to extreme cold and vibration." (R. 26.) The ALJ attributed only "some weight" to this opinion, however, reasoning that "a review of the medical evidence and the claimant's statements reveal that the claimant is capable of lifting more than 20 pounds without postural limitations." Id. The ALJ offered no further explanation for this specific determination.

Plaintiff argues that Dr. Lombard's opinion supports his claim of greater limitations than acknowledged by the ALJ. As an initial matter, plaintiff avers that if plaintiff's claim was evaluated in accordance with the Medical-Vocational Guidelines (the "Grids"), due to plaintiff's impairments and his age, plaintiff could be deemed disabled under the Grids if he were limited to sedentary or light work, but would be deemed "not disabled" under the Grids if he were capable of medium work. See Pl.'s Br. at 5-6. See also 20 C.F.R. Pt. 404, Subpt. P, App. 2. That is, plaintiff contends that "the only way to deny disability benefits to Mr. West was to find that he was capable of performing work at the medium exertional level, requiring the ability to stand and walk throughout an eight-hour workday and lift and carry 50 pounds occasionally and 25 pounds frequently." Id. at 5 (citing 20 C.F.R. § 404.1567(c)).6 Plaintiff further avers that there was no opinion from any physician that plaintiff could perform medium work. Id. at 5-6. Thus, plaintiff asserts that in reaching the determination that plaintiff retained an RFC for a limited range of medium work, the ALJ rejected the only medical opinion of record and did not offer a sufficient reason for concluding that plaintiff is capable of lifting more than twenty pounds, as limited by Dr. Lombard. See Pl.'s Br. at 5-12; Pl.'s Reply at 1-4. The court agrees with plaintiff that the ALJ's RFC analysis is not supported by substantial evidence.7

Although the ALJ offered a detailed review of the medical evidence in his decision, see R. 24-26, evidence in the treatment records document other findings that are not reflected in the ALJ's analysis which do not support the ALJ's determination that plaintiff is capable of medium work, and which support plaintiff's argument that he suffers from greater restrictions. For example, in analyzing the March 24, 2017 primary care treatment records, the ALJ noted that plaintiff "was `very stressed' because he had no income . . ., [that he] also reported that he was working with an attorney to get disability and that he had been let go from his previous job after his accident." (R. 25.) The ALJ further noted plaintiff's inability to type fast enough to return to his dispatcher position, that his hypertension was stable on medication, and that plaintiff weighed 239.4 pounds and had a BMI of 37.08. Id. The ALJ concluded that plaintiff's "physical examination was otherwise unremarkable and the claimant's mental status was within normal limits." (R. 25-26.) However, the ALJ failed to acknowledge that the March 2017 treatment notes also indicate that plaintiff demonstrated a "decreased [range of motion] right leg and right arm/hand." (R. 776.) The ALJ also did not acknowledge that the physical examination revealed weakness in plaintiff's right leg. See id.

Additionally, when discussing the most recent primary care notes dated July 17, 2018, the ALJ stated:

(R. 26.) However, a review of the July 2018 primary care treatment notes also reflect that plaintiff complained of right shoulder pain and weakness in his "left thigh area." (R. 800.) In addition, plaintiff complained of "numbness and tingling." Id. Indeed, plaintiff was diagnosed with right shoulder pain and a prescription for Cyclobenzaprine was continued to address muscle spasm in this area. (R. 802.)

This court is cognizant of the fact that 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) (not precedential), and that "[a]n ALJ may accept some of a medical source's opinions while rejecting other opinions from the same source." Comiskey v. Astrue, 2010 WL 308979, at *9 (E.D. Pa. Jan. 27, 2010) (citing Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 202-04 (3d Cir. 2008)). However, an ALJ may not "`pick and choose' among the evidence, selecting only that which supports his ultimate conclusions." Middlemas v. Astrue, 2009 WL 578406, at *9 (W.D. Pa. Mar. 5, 2009) (citing Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000) (an ALJ may not simply rely on "the pieces of the examination reports that supported [his] determination," while excluding other evidence)).

Additionally, case law guides that an ALJ "may not reject pertinent or probative evidence without explanation." Johnson, 529 F.3d at 204. The ALJ must provide not only an expression of the evidence he considered which supports the result, but also some indication of the evidence which was rejected. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). "In the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored." Id. See also Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) ("Although the ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence.").

As set forth supra, the medical records document plaintiff's allegations that he continues to experience pain in his back, lower extremities, and upper extremities since the September 2015 motorcycle accident for which he underwent multiple surgeries. In November 2016, plaintiff demonstrated an unsteady gait and had trace pedal edema on both left and right. (R. 740.) In March 2017, treatment notes reflect that plaintiff complained of "joint pain, stiffness, arthritis, loss of strength and muscle aches." (R. 775.) He demonstrated decreased range of motion in the right leg and "right arm/hand." (R. 776.) The results of this physical examination also indicate that plaintiff demonstrated right leg weakness. Id. In October 2017, plaintiff continued to report back and leg pain. (R. 763.) In July 2018, plaintiff reported right shoulder pain and weakness in his left thigh, as well as numbness and tingling. (R. 800.) Physical examination revealed restricted range of motion in plaintiff's right shoulder; plaintiff also demonstrated a positive straight leg raising test on the right. (R. 801.) Despite these findings, the ALJ discounted Dr. Lombard's opinion, reasoning that that "a review of the medical evidence and the claimant's statements reveal that the claimant is capable of lifting more than 20 pounds without postural limitations," and instead determined that plaintiff is capable of a range of medium work, which requires "lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." It is unclear from the ALJ's decision, however, how the evidence supports that determination.8

Furthermore, while the ALJ was not required to adopt each restriction noted in Dr. Lombard's opinion, the ALJ was required to evaluate the opinion evidence in accordance with the proper standards. The ALJ's proffered reason for discounting Dr. Lombard's opinion was insufficient, given the other evidence in the record which appears to contradict the ALJ's determination. See Moye v. Berryhill, 2018 WL 4770680, at *5 (E.D. Pa. Oct. 2, 2018) (Leeson, J.) ("The medical evidence does not support the ALJ's conclusion that Moye had the residual functional capacity to perform light work, and the ALJ does not satisfactorily explain Dr. Rubenfeld's contradictory opinion that Moye was limited to sedentary work."). If the ALJ excluded relevant evidence from the RFC analysis for some reason, he failed to provide such a reason and erred in so doing. The substantial evidence test is not satisfied if the ALJ "ignores, or fails to resolve, a conflict created by countervailing evidence." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). See also Nazario v. Comm'r Soc. Sec., 2019 WL 6170820, at *4 (3d Cir. Nov. 20, 2019) (not precedential) (same).

The court is mindful that this court's review is limited to determining whether the Commissioner's decision is "supported by substantial evidence." 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). This court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Med. Ctr., 806 F.2d at 1190-91. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2012) ("Courts are not permitted to re-weigh the evidence or impose their own factual determinations."); Burns, 312 F.3d at 118 ("We also have made clear that we are not permitted to weigh the evidence or substitute our own conclusions for that of the fact-finder."). See also Cortes v. Comm'r of Soc. Sec., 255 F. App'x 646, 653 (3d Cir. 2007) (not precedential) ("The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.") (quoting S.E.C. v. Chenery Corp., 318 U.S. 80, 87 (1943)); Clinkscales o/b/o T.S. v. Colvin, 232 F.Supp.3d 725, 735-36 (E.D. Pa. 2017) (same).

If the ALJ again determines that plaintiff retains the RFC to perform a range of medium work, he must provide an adequate basis for that determination. Upon remand, the Commissioner may well reach the same conclusion; however, in the absence of sufficient indication that the Commissioner considered all of the evidence in the case and applied the correct legal standards, this court cannot satisfy its obligation to determine whether substantial evidence supports the Commissioner's decision. See Terwilliger v. Chater, 945 F.Supp. 836, 844 (E.D. Pa. 1996) (remanding case in the absence of sufficient indication that the Commissioner considered all of the evidence).9

V. CONCLUSION

After a careful and thorough review of all of the evidence in the record, and for the reasons set forth above, this court finds that the ALJ's findings are not supported by substantial evidence. Accordingly, the court makes the following:

RECOMMENDATION

AND NOW, this 26th day of February, 2020, upon consideration of plaintiff's Brief and Statement of Issues in Support of Request for Review, defendant's response, and plaintiff's reply thereto, it is respectfully recommended that plaintiff's Request for Review be GRANTED.

The parties may file objections to the Report and Recommendation. See Loc. R. Civ. P. 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.

ORDER

AND NOW, this ___ day of ___, 2020, upon consideration of Plaintiff's Brief and Statement of Issues in Support of Request for Review, defendant's Response to Request for Review of Plaintiff, and plaintiff's reply thereto, and after review of the Report and Recommendation of United States Magistrate Judge Thomas J. Rueter, it is hereby

ORDERED

1. The Report and Recommendation is APPROVED and ADOPTED.

2. Plaintiff's Request for Review is GRANTED, and the decision of the Commissioner of the Social Security Administration is REVERSED to the extent that the matter is REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with United States Magistrate Judge Thomas J. Rueter's Report and Recommendation.

3. Judgment is entered in favor of plaintiff, reversing the decision of the Commissioner for the purpose of this remand only.