Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-2001

Fargnoli v. Apfel
Precedential or Non-Precedential:

Docket 99-1989




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Filed April 11, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1989

TOMMASO FARGNOLI,

Appellant

v.

WILLIAM A. HALTER,* COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 97-cv-6913)
District Judge: Honorable Clarence C. Newcomer

Argued: August 2, 2000

Before: ALITO, ROTH and AMBRO, Circuit Judges

(Filed April 11, 2001)



_________________________________________________________________
* Substituted for Kenneth S. Apfel pursuant to Rule 43(c)(2) of the
Federal Rules of Appellate Procedure.
       INEZ A. DE BAPTISTE, ESQUIRE
       (Argued)
       Silver & Silver
       42 Lancaster Avenue
       Ardmore, PA 19003

       Counsel for Appellant

       ANDREW C. LYNCH, ESQUIRE
       (Argued)
       Office of the General Counsel
       Social Security Administration
       P.O. Box 41777
       Philadelphia, PA 19101

       Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge:

This case arises from the denial of Tommaso Fargnoli's
("Fargnoli") application for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. SS 401-
433 ("Act"). Fargnoli appeals the District Court's order
granting summary judgment in favor of the Commissioner
of the Social Security Administration (the "Commissioner").1
The District Court exercised jurisdiction pursuant to 42
U.S.C. S 405(g). Our jurisdiction arises under 28 U.S.C.
S 1291. For the reasons set forth below, we will vacate the
District Court's order and remand the case with instruction
to return it to the Commissioner for further proceedings
consistent with this opinion.

I. Factual and Procedural History

Fargnoli is an unskilled construction labor er with a fifth
grade education. He was born in Italy and came to the
United States in 1964 at the age of seventeen. Far gnoli
applied for disability insurance benefits on October 29,
1993, alleging that as of May 10, 1985, he was disabled
_________________________________________________________________

1. The Social Security Administration is her einafter referred to as the
"SSA."

                               2
and unable to work due to a work-related back injury.
Because of his limited work history, Fargnoli's date last
insured was December 31, 1990. He was denied benefits
initially and on reconsideration.2 At Fargnoli's request, a
hearing before an administrative law judge (the"ALJ") was
held on February 15, 1996.

Fargnoli appeared at the hearing with his counsel and
testified, with the assistance of an Italian interpreter, about
his back impairment. Fargnoli testified that he suffers from
severe low back pain and radicular pain primarily in the
left leg but at times in the right leg. He also testified that
he sometimes has problems with numbness in his left arm.
When asked how his impairment affects his ability to work
around the house, Fargnoli testified that he has difficulty
going up and down the stairs and is unable to do any
household chores. He also testified that he has difficulty
dressing because he cannot bend over. W ith regard to work
restrictions, he testified that his back injury limits him to
lifting approximately five to ten pounds, sitting or standing
for only ten to twenty minutes at a time, and walking the
equivalent of only one to two blocks. Further , he testified
that although he occasionally drives, doing so is painful
because he cannot take his pain medication which makes
him sleepy and dizzy. He testified that his medications at
the time of the ALJ hearing were Daypro, a nonsteroid anti-
inflammatory, and Ultram, a pain reliever .

The medical evidence of record, as developed before the
ALJ, reflects that Fargnoli had been continuously treated
with two doctors since his May 1985 injury -- Dr . Dennis
B. Zaslow, an orthopedic surgeon, and Dr . Max Karpin, a
neurosurgeon. Dr. Zaslow saw Far gnoli approximately once
a month from September 1985 until approximately July
1995. At Fargnoli's initial visit in September 1985, Dr.
Zaslow diagnosed Fargnoli with an acute lower dorsal and
lumbar sprain and strain and lumbosacral somatic
_________________________________________________________________

2. The administrative review within the SSA of eligibility for disability
insurance benefits involves a four-step pr ocedure, consisting of an
initial
determination, a request for reconsideration, a request for a hearing
before an ALJ, and a request for r eview of the ALJ's decision by the
Appeals Council. See 20 C.F.R. S 404.900.

                               3
dysfunction. He stated that Fargnoli's range of motion in
his lower back was poor, his gait was labor ed and he
favored his left leg. Further, he noted that Fargnoli's left
shoulder was drooped lower than the right, his trunk was
sidebent to the left and paravertebral spasms wer e seen in
the lumbar muscles of the middle to lower back. Finally, he
indicated that straight leg raising was causing radicular
pain in Fargnoli's left leg. Based on his evaluations, Dr.
Zaslow stated that Fargnoli could not work as of December
31, 1990, his date last insured.

Dr. Zaslow's treatment notes consistently document
objective muscular symptoms associated with Far gnoli's
back impairment, including his inability to perform or
difficulty with squatting, bending, leg lifting, changing
positions, sitting, standing and walking, his tender ness to
palpitation and manipulation, and the often spastic
condition of his low back. Dr. Zaslow's tr eatment notes also
document the variability of Fargnoli's condition, which
changed depending on various conditions, impr oved with
prolonged periods of rest or immobilization and favorable
weather, and worsened with periods of incr eased activity or
occurrences of poor weather.

In January 1986, Fargnoli began treatment with Dr.
Karpin. At Fargnoli's initial visit, Dr . Karpin reported that
Fargnoli had a labored gait, difficulty walking, was favoring
the left lower extremity, and had limited flexion and
paravertebral spasm. Dr. Karpin's diagnosis was post-
traumatic status, low back syndrome, dorsolumbar sprain
and strain and left lumbar radiculopathy. Dr . Karpin
reported similar findings until approximately November 7,
1986, when he noted that Fargnoli was showing gradual
improvement. Dr. Karpin's later tr eatment notes reflect his
opinion that Fargnoli suffered fr om chronic back pain that
would improve and worsen periodically accor ding to factors
such as activity and weather, but would neither improve
nor worsen on a permanent basis from continued
medication and physical therapy. Over the course of
Fargnoli's treatment, Dr. Karpin prescribed numerous
medications.

The record reflects reports or mention of certain
diagnostic tests, including an October 1985 EMG of

                               4
Fargnoli's left lower extremity, an October 1985 CT-scan of
his lumbar spine, and a thermogram. In his November 17,
1985 report, Dr. Zaslow states that the EMG was abnormal
and notes that the findings were suggestive of
radiculopathy at the L5 region. Further , he states that the
CT-scan showed degeneration of the L3-L4 disc and a
strong possibility of a fracture of the anterior edge of the
superior plateau of L4. Finally, he notes that the
thermogram was abnormal. A tomogram of the spine was
performed in late 1985 to confir m the existence of a
fracture. It indicated interosseous distal herniation of the
lumbar spine, but no evidence of fracture. A February 1986
MRI was performed that evidenced an abnormal disc
intensity between L3-4 with a high degree of suspicion of
herniation and abnormal discs between L1-2, L4-5 and L5-
S1. A January 1986 bone scan was reported by Dr . Zaslow
as being normal. Although strongly r ecommended by both
Drs. Zaslow and Karpin to confirm disc her niation, Fargnoli
would not agree to undergo a myelogram because of his
fear of needles and invasive procedures.

Additionally, the treatment notes of Dr . Zaslow and Dr.
Karpin reflect that Fargnoli has under gone physical
therapy, varying from three times a week to one time a
week, from after his accident until appr oximately
September 1991, although the treatment notes fr om his
therapists are not included in the recor d.3

On August 5, 1996, the ALJ issued an opinion denying
Fargnoli's claim for disability insurance benefits, stating
that "the evidence of record does not r eveal that the
claimant's condition was sufficiently sever e to preclude him
from performing at least light work. . . ." The Appeals
Council of the SSA declined further review on October 4,
_________________________________________________________________

3. The record also includes the tr eatment notes and opinions of
physicians treating or examining Fargnoli, or reviewing his medical
records, after his date last insur ed (December 31, 1990). Because these
treatment notes and opinions are for a time period after Fargnoli's last
insured date and, with the exception of one tr eatment note from Dr.
Karpin, were not mentioned in the ALJ's opinion, we do not know what
significance, if any, they had in the ALJ's deter mination. On remand, the
ALJ should discuss the significance of these r ecords and whether he is
relying on any of them in reaching his determination.

                               5
1997, making the ALJ's determination the final decision of
the Commissioner.

Having exhausted his administrative remedies, Fargnoli
filed an action in the United States District Court for the
Eastern District of Pennsylvania seeking judicial review of
the ALJ's decision. The parties filed cross-motions for
summary judgment. The District Court granted the
Commissioner's request for summary judgment and denied
Fargnoli's request. Fargnoli appeals the District Court's
decision.

II. Discussion

A. Standard of Review.

Although our review of the District Court's or der for
summary judgment is plenary, "our review of the ALJ's
decision is more deferential as we deter mine whether there
is substantial evidence to support the decision of the
Commissioner." Knepp v. Apfel, 

, 83 (3d Cir.
2000). "Substantial evidence has been defined as `more
than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate.' " Plummer v.
Apfel, 

, 427 (3d Cir. 1999) (quoting Ventura v.
Shalala, 

, 901 (3d Cir . 1995)). Where the ALJ's
findings of fact are supported by substantial evidence, we
are bound by those findings, even if we would have decided
the factual inquiry differently. Hartranft v. Apfel, 

, 360 (3d Cir. 1999). Thus, the general issue before us
is whether the ALJ's finding that Fargnoli was not disabled,
and thus not entitled to disability insurance benefits, is
supported by substantial evidence.

B. Determination of Disability

Under the Social Security Act, a disability is established
where the claimant demonstrates that ther e is some
" `medically determinable basis for an impairment that
prevents him from engaging in any `substantial gainful
activity' for a statutory twelve-month period.' " 

(quoting Stunkard v. Sec. of Health &
Human Servs., 

, 59 (3d Cir . 1988)); see also 20
C.F.R. S 404.1505(a). A claimant is considered unable to
engage in any substantial gainful activity "only if his

                                 6
physical or mental impairment or impair ments are of such
severity that he is not only unable to do his pr evious 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.
S 423(d)(2)(A). This disability determination is made by the
Commissioner based on a five-step sequential evaluation
process promulgated by the Social Security Administration
("SSA"). See 20 C.F.R. S 404.1520. In Plummer, this Court
set out the relevant steps as follows:

       In step one, the Commissioner must determine
       whether the claimant is currently engaging in
       substantial gainful activity. 20 C.F.R. S [404.]1520(a). If
       a claimant is found to be engaged in substantial
       activity, the disability claim will be denied. Bowen v.
       Yuckert, 

, 140, 

, 2290-91,
       

(1987). In step two, the Commissioner
       must determine whether the claimant is suf fering from
       a severe impairment. 20 C.F.R.S 404.1520(c). If the
       claimant fails to show that her impairments ar e
       "severe," she is ineligible for disability benefits.

        In step three, the Commissioner compar es the
       medical evidence of the claimant's impairment to a list
       of impairments presumed severe enough to preclude
       any gainful work. 20 C.F.R. S 404.1520(d). If a claimant
       does not suffer from a listed impair ment or its
       equivalent, the analysis proceeds to steps four and five.
       Step four requires the ALJ to consider whether the
       claimant retains the residual functional capacity to
       perform her past relevant work. 20 C.F.R.
       S 404.1520(d). The claimant bears the bur den of
       demonstrating an inability to return to her past
       relevant work. Adorno v. Shalala, 

, 46 (3d
       Cir. 1994).

        If the claimant is unable to resume her for mer
       occupation, the evaluation moves to the final step. At
       this stage, the burden of production shifts to the
       Commissioner, who must demonstrate the claimant is
       capable of performing other available work in order to
       deny a claim of disability. 20 C.F.R. S 404.1520(f). The
       ALJ must show there are other jobs existing in

                               7
       significant numbers in the national economy which the
       claimant can perform, consistent with her medical
       impairments, age, education, past work experience,
       and residual functional capacity. The ALJ must analyze
       the cumulative effect of all the claimant's impairments
       in determining whether she is capable of per forming
       work and is not disabled. See 20 C.F .R. S 404.1523.
       The ALJ will often seek the assistance of a vocational
       expert at this fifth step. See, [sic] Podedworny v.
       Harris, 

, 218 (3d Cir . 

.

In this case, the ALJ undertook the five-step sequential
evaluation in determining that Fargnoli was not disabled.
The ALJ made the following findings: (1) Far gnoli had not
engaged in any substantial gainful activity since the alleged
onset date of disability; (2) he suffers fr om a severe back
impairment; (3) his back impairment, although severe, does
not meet or equal the criteria of the Listing of Impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P , App. 1; (4) he
retains the residual functional capacity to engage in light
work, and therefore cannot retur n to his past relevant work
as a construction laborer because it is heavy work; and (5)
based on his age, educational background, work
experience, and limitations, the medical vocational
guidelines (the "Grids") direct a finding of not disabled. See
20 C.F.R. Pt. 404, Subpt. P, App. 2,S 202.17. The ALJ
erred, Fargnoli contends, at step four in determining that
he retained the residual functional capacity to do light
work. We agree.4
_________________________________________________________________

4. Although not raised by Fargnoli, and therefore not an issue in this
appeal, we also note our concern with the conclusion reached by the ALJ
at step three in the sequential evaluation pr ocess and the discussion
thereof. The ALJ determined that Far gnoli's back impairment did not
meet the Listing of Impairments at 20 C.F .R. Pt. 404, Subpt. P, App. 1.
He stated that "[n]o treating or examining physician has mentioned
findings equivalent in severity to the criteria of any listed impairment.
Particular consideration was given to Listing 1.00 (musculoskeletal
system)." First, we note that in reviewing the voluminous medical
evidence for our discussion of step four of the pr ocess, we found
treatment notes and diagnostic tests ar guably meeting the Listing of

                               8
C. Step Four Evaluation: Residual Functional Capacity

" `Residual functional capacity is defined as that which an
individual is still able to do despite the limitations caused
by his or her impairment(s).' " Bur nett v. Comm'r of Soc.
Sec. Admin., 

, 121 (3d Cir . 2000) (quoting

n.1); see also 20 C.F.R.
S 404.1545(a). In this case, the ALJ deter mined that
Fargnoli had the residual functional capacity to perform
light work. The SSA defines work as "light" when it

       involves lifting no more than 20 pounds at a time with
       frequent lifting or carrying of objects weighing up to 10
       pounds. Even though the weight lifted may be very
       little, a job is in this category when it requires a good
       deal of walking or standing, or when it involves sitting
       most of the time with some pushing and pulling of ar m
       or leg controls. To be considered capable of performing
       a full or wide range or light work, you must have the
       ability to do substantially all of these activities.

20 C.F.R. S 404.1567(b). The SSA has further explained
that "light work generally requires the ability to stand and
carry weight for approximately six hours of an eight hour
day." Jesurum v. Sec. of Health & Human Servs., 

, 119 (3d Cir. 1995) (citing Social Security Ruling 83-
10).

After reviewing the record, we find it impossible to
determine whether the ALJ's finding that Far gnoli can
perform light work is supported by substantial evidence.
We are handicapped by the fact that the ALJ has (1) failed
to evaluate adequately all relevant evidence and to explain
the basis of his conclusions and (2) failed to explain his
_________________________________________________________________

Impairments in S 1.05 (disorders of the spine). Second, we note that this
Court requires more than just a conclusory statement that a claimant
does not meet the listings. See Burnett v. Comm'r of Soc. Sec. Admin.,

, 119-20 (3d Cir. 2000) (r emanding where conclusory
statement "is similarly beyond meaningful judicial review," with
directions that ALJ should "fully develop the record and explain his
findings at step three, including an analysis of whether and why [the
claimant's] . . . impairments . . . ar e or are not equivalent in severity
to
one of the listed impairments").

                               9
assessment of the credibility of, and weight given to, the
medical evidence and opinions from Fargnoli's treating
physicians that contradict the ALJ's finding that Fargnoli
can perform light work. We ther efore vacate the decision of
the District Court and remand with instruction to remand
to the ALJ for further proceedings.5

       1. The ALJ Must Evaluate All the Evidence and Explain
       the Basis for his Conclusions.

The ALJ must consider all relevant evidence when
determining an individual's residual functional capacity in
step four. See 20 C.F.R. SS 404.1527(e)(2), 404.1545(a),
404.1546; 

. That evidence includes
medical records, observations made during formal medical
examinations, descriptions of limitations by the claimant
and others, and observations of the claimant's limitations
by others. See 20 C.F.R. S 404.1545(a). Moreover, the ALJ's
finding of residual functional capacity must"be
accompanied by a clear and satisfactory explication of the
basis on which it rests." Cotter v. Harris, 

, 704
(3d Cir. 1981). In Cotter, we explained that

       [i]n our view an examiner's findings should be as
_________________________________________________________________

5. Fargnoli urges us to conclude further that the ALJ improperly relied
on Fargnoli's desire to retur n to work at a light exertional level and to
take a trip to Europe as substantial evidence that he could perform light
work. Although it is not the primary basis for our r emand, we agree. In
this particular case, we believe that Fargnoli's expressed desire to
return
to work at a light duty job cannot support a finding that he is actually
capable of such work when he later testified that he cannot perform light
work and his testimony is consistent with restrictions imposed by his
treating physician. See Talbot v. Heckler, 

, 1461 (10th Cir.
1987) (claimant's application for vocational training did not create
inference that "claimant thought he could work at a full range of light
activity" as opposed to a "limited range of light or sedentary activity").
Furthermore, Fargnoli's trip to Eur ope in 1988 cannot be the basis for
a finding that he is capable of doing a light exertional job because
sporadic and transitory activities cannot be used to show an ability to
engage in substantial gainful activity. See 

(claimant's trip to Rhode Island two years prior to hearing was a
"sporadic and transitory activity that cannot be used to show an ability
to engage in substantial gainful activity").

                               10
       comprehensive and analytical as feasible and, where
       appropriate, should include a statement of subordinate
       factual foundations on which ultimate factual
       conclusions are based, so that a reviewing court may
       know the basis for the decision. This is necessary so
       that the court may properly exercise its r esponsibility
       under 42 U.S.C. S 405(g) to determine if the Secretary's
       decision is supported by substantial evidence.

(quoting Baerga v. Richardson, 

,
312 (3d Cir. 1974)).

The ALJ's discussion of the relevant medical evidence in
Fargnoli's case was limited to the following four paragraphs:

       A medical report from [Dr. Zaslow], doctor of
       osteopathy, dated December 16, 1995, revealed that
       the claimant complained of increasing pain since his
       work-related accident in May 1985. Dr. Zaslow stated
       a computerized tomography scan of the lumbar spine,
       done on October 19, 1985, indicated degeneration of
       the L3-4 disc. A thermogram done on October 24, 1985
       was reported as normal and showed L4-L5 nerve fiber
       involvement on the left side. An electromyography
       performed on October 30, 1985 showed evidence of
       radiculopathy. A medical report from Dr . Zaslow, dated
       December 5, 1986, stated that a bone scan per formed
       on January 22, 1986 was completely normal. The
       claimant stated that he was able to stand for an hour
       and sit for several hours.

       A report by [Dr. Karpin], dated December 12, 1986,
       stated that a magnetic resonance imaging showed
       abnormal disc intensity between L3-4, and abnormal
       disc between L-1 and L-2, and to a lesser extent
       between L-4, 5 and L5-S1. It was reported that the
       claimant refused to undergo a myelogram to confirm
       the findings and chose to continue with the
       conservative treatments for a while longer . Dr. Karpin
       stated that the claimant has to maintain a 1,000
       calorie [diet] to lose weight in order to reduce the
       pressure on his back.

       A report by Dr. Zaslow, dated December 4, 1987,
       stated that the claimant complained about pain over

                               11
       the midline. There was considerable spasm of the back
       with the inability to flex forward. The claimant stated
       that he wanted a light duty job, but no light duty work
       was available for him.

       A medical report by Dr. Karpin, dated February 22,
       1991, stated that the claimant was still having
       difficulty with his lower back, but was able to cope
       with the pain and discomfort as long as he took his
       muscle relaxant and non-steroidal anti-inflammatory.
       The claimant was maintained on Robaxin, Feldene and
       physical therapy.6

In the passages quoted above, the ALJ describes four
diagnostic tests and five treatment notes. Y et our review of
the record reflects over 115 pages of relevant, probative
treatment notes from Drs. Zaslow and Karpin detailing
Fargnoli's medical condition and progr ess. The disparity
between the actual record and the ALJ's sparse synopsis of
it makes it impossible for us to review the ALJ's decision,
for we "cannot tell if significant probative evidence was not
credited or simply ignored." Bur 

(quoting 

).

Although we do not expect the ALJ to make refer ence to
every relevant treatment note in a case where the claimant,
such as Fargnoli, has voluminous medical r ecords, we do
expect the ALJ, as the factfinder, to consider and evaluate
the medical evidence in the record consistent with his
responsibilities under the regulations and case law. His
failure to do so here leaves us little choice but to remand
for a more comprehensive analysis of the evidence
_________________________________________________________________

6. The Commissioner argues that the ALJ'sfinding is further supported
by a workers' compensation commutation enter ed into by Fargnoli in
1995, in which he stipulates that he has an agr eed earning power of a
certain sum, and the opinions of three doctors examining Fargnoli after
his date last insured for disability benefits (December 31, 1990). See
Appellee's Br. at 3-4. Although this infor mation may have been in the
file
before the ALJ, there is no evidence in the record that any of it was
considered by him. Furthermore, after reviewing the record, we cannot
find two of the opinions relied on by the Commissioner. We therefore
cannot consider them as a basis for finding that the ALJ's decision is
supported by substantial evidence.

                               12
consistent with the requirements of applicable regulations
and the law of this Circuit, both as discussed in more detail
below.

       2. The ALJ Must Assess the Credibility of, and Explain
       the Weight Given To, Conflicting Medical Evidence by
       the Claimant's Treating Physicians.

This Court has long been concerned with ALJ opinions
that fail properly to consider, discuss and weigh relevant
medical evidence. See Dobrowolsky v. Califano, 

, 406-07 (3d Cir. 1979) ("This Court has repeatedly
emphasized that the special nature of pr oceedings for
disability benefits dictates care on the part of the agency in
developing an administrative record and in explicitly
weighing all evidence."). Where ther e is conflicting probative
evidence in the record, we recognize a particularly acute
need for an explanation of the reasoning behind the ALJ's
conclusions, and will vacate or remand a case where such
an explanation is not provided. See Cotter , 642 F.2d at 706
(listing cases remanded for ALJ's failur e to provide
explanation of reason for rejecting or not addressing
relevant probative evidence).

In his opinion the ALJ finds Fargnoli to have a severe
back impairment, but not so severe that it prevents him
from performing light work that includes frequently lifting
ten pounds, occasionally lifting twenty pounds, and
standing and walking for six hours out of an eight-hour
day. In reaching this finding, the ALJ does not mention the
contradictory finding of Dr. Zaslow, nor does he explain his
assessment of the credibility of Drs. Zaslow and Karpin or
the weight given to their treatment notes and opinions.

Under applicable regulations and the law of this Court,
opinions of a claimant's treating physician ar e entitled to
substantial and at times even controlling weight. See 20
C.F.R. S 404.1527(d)(2); 

. The
regulations explain that more weight is given to a
claimant's treating physician because

       these sources are likely to be the medical professionals
       most able to provide a detailed, longitudinal picture of
       [the claimant's] medical impairment(s) and may bring a

                               13
       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.

20 C.F.R. S 404.1527(d)(2). Wher e a treating source's
opinion on the nature and severity of a claimant's
impairment is "well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in[the
claimant's] case record," it will be given "controlling weight."

ALJ may weigh the credibility of the
evidence, he must give some indication of the evidence that
he rejects and his reason(s) for discounting that evidence.
See 

; 

. In
Burnett, we determined that the ALJ had not met his
responsibilities because he "fail[ed] to consider and explain
his reasons for discounting all of the pertinent evidence
before him in making his residual functional capacity

. W e therefore remanded
the case to the ALJ with instructions to "r eview all of the
pertinent medical evidence, explaining any conciliations
and rejections." 

The record reflects that thr oughout his treating history
Dr. Zaslow consistently found Fargnoli to suffer from a
severe and dehabilitating chronic back condition that often
requires bed rest or immobilization. Countless treatment
notes document Fargnoli's spastic condition, the immobility
of his lower back, the radicular pain to his legs and his
tenderness to palpitation and manipulation. Fargnoli points
out that Dr. Zaslow has opined on twenty-thr ee separate
occasions that he is disabled. Dr. Zaslow has restricted
Fargnoli to only seven to ten pounds of lifting, no prolonged
periods of walking and no climbing, bending or squatting.
He has also opined that Fargnoli is incapable of even
sedentary work.

Although never opining on Fargnoli's vocational
restrictions or limitations, Dr. Karpin's clinical findings are
consistent with Fargnoli's complaints. Dr . Karpin found
that Fargnoli suffers from r educed mobility, spasms and

                               14
tenderness to palpitation. Further, Dr . Karpin's treatment
notes document the sensitivity of Fargnoli's back
impairment to changes in the weather and his activity level.
Finally, Dr. Karpin noted that, although Far gnoli's chronic
condition can be maintained at status quo with continued
medication and physical therapy, he will continue to suffer
symptoms associated with his back impairment.

The ALJ makes no mention of any of these significant
contradictory findings, leaving us to wonder whether he
considered and rejected them, consider ed and discounted
them, or failed to consider them at all. "The ALJ's failure to
explain his implicit rejection of this evidence or even to
acknowledge its presence was error." 

.7
We therefore cannot conclude that his findings at step four
were supported by substantial evidence. Mor eover, we
cannot affirm the ALJ's determination that Fargnoli was not
disabled under the Grids because that determination
requires that Fargnoli be capable of light exertional work.

III. Conclusion

For the foregoing reasons, the District Court's order
granting summary judgment to the Commissioner will be
vacated and remanded to the District Court with
instructions to remand to the Commissioner for additional
proceedings consistent with this opinion. On r emand, the
ALJ must consider and make specific findings as to all of
the relevant probative medical evidence, including
assessing the credibility of the evidence and weighing that
evidence. Further, to the extent that the ALJ reaches a
finding contradictory to that of Fargnoli's treating
physicians, he must explain the reasoning behind such a
_________________________________________________________________

7. The District Court, apparently recognizing the ALJ's failure to
consider
all of the relevant and probative evidence, attempted to rectify this
error
by relying on medical records found in its own independent analysis,
and which were not mentioned by the ALJ. This runs counter to the
teaching of SEC v. Chenery Corporation, 

(1943), that "[t]he
grounds upon which an administrative or der must be judged are those
upon which the record discloses that its action was based." 

see
also Healtheast Bethesda Lutheran Hosp. & Rehab. Ctr . v. Shalala, 

, 418 (8th Cir. 1998) (r ecognizing Chenery in case deciding
claim for Social Security disability insurance benefits).

                               15
finding, including reconciling conflicts and discussing how
and why probative evidence supporting Far gnoli's claim was
discounted and/or rejected.

                               16
ROTH, Circuit Judge, dissenting:

I respectfully dissent. This case presents the not
uncommon conflict between treating physician and
independent medical examiner. The treating physician has
determined that the petitioner is unable to work. The
independent medical examiner finds that the objective tests
do not substantiate the subjective complaints and that the
petitioner is exaggerating. In view of the fact that the
Administrative Law Judge credited the testimony of the
latter, rather than the former, I am persuaded that the
decision is supported by sufficient evidence. I am also
concerned by the petitioner's refusal to permit tests and
treatment that would alleviate a ruptur ed disc if that is
indeed his problem. For these reasons, I would affirm the
decision of the District Court, upholding the deter mination
of the Administrative Law Judge.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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