*1 cur- on DC’s IEP an annual based erate reach an cannot parties If the
rent needs. ap- may pursue they then
agreement, by the provided remedies as
propriate
IDEA. Congress point. final one make
We IDEA system under
mandated to- by parents involvement
considerable formulating systems in with school
gether experts on edu- are not Judges
IEPs. of DC will The education theory.
cational work- by Mrs. B. and Rome served
be best
ing together. costs appeal. B.’s No Mrs. dismiss
We
are awarded. FARGNOLI, Appellant,
Tommaso MASSANARI,* Acting
Larry G. Security
Commissioner, Social
Administration.
No. 99-1989. Appeals, States Court
United
Third Circuit.
Argued Aug. 2000. 11, 2001. April
Filed contravene inadequate,” which would agency's to be parents have on an where relied Otherwise, "parents 736 F.2d at stay-put provision. favor. IDEA'S decision their position of hav- placed be in the difficult will ing between the state directive to choose * Apfel pursuant S. for Kenneth Substituted placement at private the child in the maintain 43(c)(2) Appellate Federal Rules funds, Rule ultimately using their own the risk of Procedure. place- moving to the the child town's or of agency has determined the state ment which *2 set reasons forth § 1291. For the U.S.C. Court’s below, the District will vacate we instruc- case with and remand the it to the Commissioner tion to return *3 with consistent proceedings further opinion. History and Procedural
I. Factual la- construction is an unskilled Fargnoli He grade education. a fifth borer with to the United Italy and came was born age of seventeen. at the in 1964 States disability insurance for Fargnoli applied 29, 1993, alleging that on October benefits was disabled and May he as of back to due to a work-related unable work & (Argued), A. Silver Baptiste, Inez De limited work histo- of his injury. Because Ardmore, PA, Appel- for Counsel Silver, was De- insured ry, Fargnoli’s date last lant. benefits He denied 1990. was cember At Farg- (Argued), and on reconsideration.2 Lynch, initially Office Andrew C. an adminis- Counsel, hearing before Security request, Ad- a Social noli’s the General “ALJ”) (the held PA, on ministration, judge Counsel for trative law Philadelphia, 15,1996. February Appellee. hearing appeared with AMBRO, ALITO, and ROTH Before: testified, with the assis- and his counsel Judges.
Circuit interpreter, about his of an Italian tance testified that impairment. back THE COURT OPINION OF pain low back and from severe he suffers AMBRO, Judge: Circuit leg in the left but pain primarily radicular leg. He also testified right in the of Tom- at times from the denial This case arises problems with that sometimes has (“Fargnoli”) he Fargnoli’s application maso in his left arm. When asked Ti- numbness disability benefits under insurance for ability Act, impairment affects Security how his 42 U.S.C. II of the Social tle house, Fargnoli testified (“Act”). work Fargnoli appeals the around §§ 401-433 difficulty up and down summary going has granting he Court’s order District any house- to do and is unable the Commissioner stairs in favor of judgment (the that he He also has hold chores. testified Security Administration Social he cannot bend “Commissioner”).1 difficulty dressing because ex- The District Court restrictions, to work he regard to 42 U.S.C. over. With jurisdiction pursuant ercised limits him injury that his back jurisdiction arises under testified 405(g). Our determination, request a for reconsid- initial Security is here- The Social Administration ALJ, eration, hearing request to as the "SSA.” a for a before inafter referred request review of the ALJ's decision and for within SSA of review 2. The administrative Appeals See C.F.R. Council. in- disability insurance eligibility for benefits § 404.900. consisting four-step procedure, of an volves pounds, treatment notes also document the varia- approximately five ten lifting only twenty bility condition, ten to sitting standing Fargnoli’s which time, walking equiva- conditions, minutes at a changed depending on various Further, only one to two lent of blocks. improved prolonged periods of rest or occasionally although he he testified weather, immobilization favorable drives, he can- doing painful so is because periods activity worsened with of increased pain take his medication which makes poor or occurrences of weather. that his sleepy dizzy. him He testified In January Fargnoli began treat- hearing medications at the time of the ALJ Dr. Karpin. Fargnoli’s ment with At ini- anti-inflamma- Daypro, were nonsteroid visit, Dr. Karpin reported Fargno- tial Ultram, tory, pain reliever. *4 gait, difficulty li had a labored walking, record, as de- The medical evidence favoring extremity, was the left lower and ALJ, reflects that veloped before had limited paravertebral flexion and continuously had treated Fargnoli been spasm. Karpin’s diagnosis post- Dr. was inju- May doctors since his 1985 with two status, syndrome, traumatic low back dor- Zaslow, ry orthopedic Dennis B. an —Dr. sprain solumbar and strain left and lumbar surgeon, Karpin, and Dr. Max a neurosur- radiculopathy. Karpin reported Dr. simi- Fargnoli approxi- Dr. saw geon. Zaslow findings lar until approximately November September 1985 mately once a month 7, 1986, Fargnoli when he noted that was Farg- At approximately July until showing gradual improvement. Dr. Kar- September noli’s initial visit in Dr. pin’s opin- later treatment notes reflect his diagnosed with an acute Fargnoli Zaslow ion that suffered from chronic sprain lower dorsal and lumbar and strain pain improve back that would and worsen dysfunction. and somatic He lumbosacral periodically according to factors such as Fargnoli’s range stated that of motion weather, activity and but would neither poor, gait his lower back was his was improve permanent nor on a basis worsen leg. and he favored his left Fur- labored physical from continued medication and ther, Fargnoli’s he noted that left shoulder therapy. Fargnoli’s Over the course of right, than the his drooped was lower treatment, Karpin prescribed Dr. numer- paraver- trunk was sidebent to the left ous medications. spasms seen in the lumbar tebral were reports or mention Fi- The record reflects muscles of the middle to lower back. tests, diagnostic including of certain an nally, straight leg raising he indicated that causing pain Fargnoli’s Fargnoli’s was radicular October 1985 EMG of left lower evaluations, leg. extremity, left Based on his Dr. his an October 1985 CT-scan of stated that could not Zaslow thermogram. lumbar and a spine, 31, 1990, work as of December his date report, Dr. Zaslow November last insured. states that the EMG was abnormal suggestive of findings notes that the were Dr. Zaslow’s treatment notes consistent- Further, radiculopathy region. at the L5 ly objective symptoms document muscular degen- he states that the showed CT-scan Fargnoli’s impair- back associated with a strong eration of the L3-L4 disc and ment, inability perform including his possibility of a fracture of the anterior difficulty squatting, bending, leg lift- Final- edge superior plateau of the of L4. ing, changing positions, sitting, standing ly, thermogram he notes that the was ab- walking, palpitation his tender ness to spine A tomogram normal. manipulation, spastic and the often performed Dr. in late 1985 to confirm the exis- condition of his low back. Zaslow’s summary request for Commissioner’s It indicated interosse- a fracture. tence of request. spine, Fargnoli’s judgment of the lumbar and denied herniation ous distal February A of fracture. District Court’s deci- Fargnoli appeals no evidence but performed that evidenced MRI was sion. LB-4 intensity between disc abnormal of hernia- degree suspicion high with a II. Discussion Ll-2, abnormal discs between tion and Review. A. January 1986 bone Standard A L4-5 and L5-S1. being Dr. Zaslow as reported scan was of the Dis Although our review strongly recommended Although normal. judgment summary trict Court’s to con- Karpin Drs. Zaslow both deci review of the ALJ’s plenary, is “our herniation, Fargnoli would firm disc mine as we deter sion is more deferential myelogram because agree undergo whether there substantial proce- invasive of needles and his fear support the decision of Commissioner.” dures. F.3d Cir. Knepp Apfel, of Dr. Additionally, the treatment notes 2000). has been de “Substantial evidence Farg- Karpin and Dr. reflect Zaslow scintilla. It *5 than a mere fined as ‘more vary- physical therapy, gone noli has under evidence as a reason means such relevant time a three times a week to one ing from ” adequate.’ might accept mind as able
week,
approxi-
until
after his accident
from
(3d
422, 427
Apfel,
v.
186 F.3d
Plummer
1991, although the
mately September
Cir.1999)
Shalala, 55
(quoting Ventura v.
therapists
his
are
treatment notes from
Cir.1995)).
(3d
900,
Where
F.3d
901
in
not included
the record.3
supported by
findings of fact are
ALJ’s
1996,
5,
an
August
the ALJ issued
On
evidence,
by
we are bound
substantial
for dis-
opinion denying Fargnoli’s claim
if
have de
findings, even we would
those
benefits, stating that “the
ability insurance
differently. Har
inquiry
the factual
cided
that the
of record does not reveal
F.3d
Cir.
Apfel,
v.
tranft
sufficiently severe
claimant’s condition was
1999). Thus,
general issue before us is
performing at least
preclude
him from
whether
ALJ’s
Appeals
of
light work....”
The
Council
disabled,
not entitled to
was not
and thus
further review on Octo-
the SSA declined
benefits,
supported
disability insurance
determina-
making the ALJ’s
ber
by substantial evidence.
tion the final decision
Commissioner.
Having exhausted his administrative
Disability
B. Determination of
remedies,
an
in the
Fargnoli filed
action
Act,
Security
a disabili-
Under the Social
District Court for the East-
United States
the claimant dem-
ty is established where
judi-
Pennsylvania seeking
of
ern District
“ ‘medically
some
onstrates that
there is
of the ALJ’s decision. The
cial review
impairment
an
determinable basis for
summary
parties filed cross-motions
engaging
any
him
in
‘sub-
granted
prevents
judgment. The District Court
Karpin,
note from Dr.
the treatment
tion of one treatment
3. The record also includes
opinion, we
physicians treating
were not mentioned in the ALJ’s
opinions
or
*6
termine whether the claimant is current-
impairments
the claimant’s
in determin
ly engaging
gainful
in substantial
activi-
ing
capable
per
whether she is
form
[404.]1520(a).
§
If
ty.
20 C.F.R.
a
ing work and is not disabled.
20
See
in
engaged
claimant is found to be
sub-
§ 404.1523.
C.F.R.
The ALJ will often
activity,
disability claim
stantial
the
will
seek the assistance of
vocational ex
Yuckert,
Bowen v.
482
be denied.
U.S.
See,
pert
step.
at this fifth
[sic] Podedw
137, 140,
2287, 2290-91,
107 S.Ct.
96
Harris,
orny
745 F.2d
218
(1987).
two,
step
In
L.Ed.2d
the
Cir.1984).
Commissioner must determine whether
41 Evaluate All The ALJ’s discussion of the rele 1. The ALJ Must Explain Fargnoli’s Evidence and vant medical evidence in case following para Basis his Conclusions. to the was limited four graphs: all relevant evi- The ALJ must consider Zaslow], report A [Dr. medical doc- determining an individual’s re-
dence when
16,
osteopathy,
tor of
dated December
step
capacity
functional
four. See
sidual
1995,
that
claimant
revealed
com-
404.1545(a),
404.1527(e)(2),
§§
20 C.F.R.
plained
increasing pain
since his
Burnett,
404.1546;
A Dr. medical 22,1991, claim- February stated that the Credibility The Must Assess ALJ difficulty having with his ant was still To, Explain Weight Given of, and cope back, but was able to lower Medical Evidence Conflicting long as he pain and discomfort as Treating Physicians. Claimant’s and non-steroi- took his muscle relaxant anti-inflammatory. The claimant dal long has been con This Court Robaxin, maintained on Feldene opinions proper that fail cerned with ALJ physical therapy.6 consider, weigh relevant ly to discuss and Dobrowolsky above, medical evidence. See the ALJ passages quoted In the Califano, 606 F.2d 406-07 Cir. diagnostic tests and five describes four 1979) (“This empha repeatedly review of the has treatment notes. Yet our Court relevant, pages special proceed reflects over 115 record sized that the nature Drs. Zas probative treatment notes from disability for benefits dictates care on ings detailing Fargnoli’s medi Karpin low and an part agency developing of the progress. disparity The cal condition and explicitly and in administrative record the actual record and the ALJ’s evidence.”). between weighing all Where there impossible it it sparse synopsis of makes in the rec conflicting probative evidence decision, for we for us to review the ALJ’s ord, recognize particularly acute need we probative if evi significant “cannot tell explanation reasoning behind for ignored.” simply dence was not credited or conclusions, vacate or the ALJ’s will Cotter, Burnett, (quoting at 121 explanation a case where such an remand 705). Cotter, F.2d at provided. is not See fail (listing cases remanded for ALJ’s Although expect we do not the ALJ provide explanation ure to of reason every relevant treat to make reference claimant, rejecting addressing proba relevant note in a case where the ment evidence). Fargnoli, such as has voluminous medical tive ALJ, may argues ALJ’s tion have been in the file before 6. The Commissioner supported by is farther a workers’ any of there is no evidence in the record that compensation enter ed into Furthermore, commutation by him. after it was considered *9 Fargnoli stipulates he that in which record, reviewing the we cannot find two of agreed earning power he has an of a certain opinions the relied on the Commissioner. sum, opinions exam- and the of three doctors cannot consider them as a basis We therefore ining Fargnoli after his date last insured for sup- decision is for the ALJ’s 31, 1990). (December disability benefits See ported substantial evidence. Although Appellee's Br. at 3-4. this informa- that the had not Fargnoli finds to we determined ALJ met opinion the ALJ In his responsibilities so his because he to impairment, “fail[ed] but not have a severe back perform- explain him consider and his reasons for dis- prevents that it severe counting pertinent all of the evidence be- frequentlydift- that includes ing light work him in occasionally lifting twenty making fore his residual functional pounds, ing ten capacity at standing walking for six determination.” F.3d pounds, and In remanded the to the eight-hour day. reach- We therefore case hours out of ALJ with instructions to “review all of the finding, the ALJ does not mention ing this Zaslow, evidence, contradictory finding pertinent explaining any of Dr. medical rejections.” explain his assessment of the conciliations and Id. at 122. nor does he Karpin or credibility of Drs. Zaslow and that throughout The record reflects treatment notes weight given to their treating history consistently Dr. Zaslow opinions. Fargnoli found to suffer from severe and dehabilitating chronic back condition that regulations and applicable Under immobilization. requires often bed rest or Court, opinions of a claim the law of this Farg- Countless treatment notes document to treating physician are entitled sub ant’s condition, spastic immobility noli’s controlling and at times even stantial back, pain his lower the radicular to his 404.1527(d)(2); § weight. See C.F.R. legs palpitation and his tenderness to Cotter, regulations F.2d at 704. The manipulation. Fargnoli points out that Dr. explain weight given that more is opined twenty-three sepa- Zaslow has on treating physician because claimant’s rate occasions that he is disabled. Dr. likely to these sources are be medi- only Fargnoli Zaslow has restricted sev- professionals provide most able to cal pounds lifting, prolonged en to ten no detailed, longitudinal picture of [the periods walking climbing, and no bend- impairment(s) medical claimant’s] opined ing squatting. or He has also may bring unique perspective to the incapable sedentary is of even medical evidence that cannot be ob- work. objective from the medical find- tained reports or from of individual
ings alone
Although
opining
Fargnoli’s
on
never
examinations, such as consultative exam-
limitations,
Dr.
vocational restrictions
hospitalizations.
inations or brief
Karpin’s
findings
clinical
are consistent
404.1527(d)(2).
Fargnoli’s complaints.
Karpin
Dr.
a with
20 C.F.R.
Where
suffers from reduced
treating
opinion on the nature and found
source’s
palpi-
mobility, spasms and tenderness to
severity
impairment
of a claimant’s
Further,
Karpin’s
Dr.
by medically acceptable
tation.
treatment
“well-supported
laboratory diagnostic
sensitivity
Fargno-
notes document
clinical and
tech-
impairment
changes
inconsistent
li’s back
and is not
niques
Finally, Dr.
activity
claim- weather and his
level.
in[the
other substantial evidence
that,
record,”
Fargnoli’s
given
Karpin
although
it
“con-
noted
ease
will be
ant’s]
chronic condition can be maintained
sta-
trolling weight.” Id.
quo
tus
with continued medication
may weigh the
Although the ALJ
to suffer
physical therapy, he will continue
evidence,
give
must
credibility of the
he
symptoms
impair-
his back
associated with
that he
some indication
ment.
reason(s)
rejects
discounting
and his
Burnett,
any
mention of
220 F.3d at
The ALJ makes no
that evidence. See
Burnett,
Cotter,
contradictory findings,
121;
significant
these
remanded to the Commissioner
structions to remand consistent with proceedings
for additional remand, opinion. On the ALJ must
this specific findings as to consider and make AVE, MEDTRONIC INC. probative all the relevant medical evi- dence, credibility of including assessing the v. weighing the evidence and that evidence. ADVANCED CARDIOVASCULAR Further, to the extent that the ALJ reach- SYSTEMS, INC., Appellant. finding contradictory Farg- to that of es No. 00-5230. physicians, explain he must treating noli’s finding, such a in- reasoning behind Appeals, United States Court of reconciling discussing conflicts and cluding Third Circuit. why probative support- how and ing Fargnoli’s claim was discounted Argued and/or Feb. 2001. rejected. April Filed:
ROTH, Judge, dissenting: Circuit respectfully pres-
I dissent. This case
ents the not uncommon conflict between Court, judged recognizing must be apparently which an administrative order
7. The District all of the relevant the ALJ’sfailure to consider upon which the discloses are those record evidence, rectify probative attempted 87; Id. also that its action was based.” see by relying error on medical records found Hosp. Healtheast Bethesda Lutheran & Rehab. analysis, independent and which in its own Shalala, (8th Cir. Ctr. were not mentioned the ALJ. This runs 1998) deciding (recognizing Chenery in case teaching Chenery of SEC v. counter to Security disability claim for Social insurance Corporation, 318 U.S. 63 S.Ct. benefits). (1943), grounds upon that ”[t]he L.Ed. notes they significance, any, reviewing know what if examining Fargnoli, or his medical do not remand, (December records, On had in the ALJ’s determination. after his date last insured 31, 1990). significance treatment notes the ALJ should discuss Because these relying on period Farg- these records and whether he is opinions are for a time after and, reaching excep- any them his determination. date with the in noli's last insured activity’ statutory capac- for a ant retains the residual functional gainful stantial ” Plummer, 186 period.’ ity perform past twelve-month her relevant work. 404.1520(d). (quoting at 427 Stunkard Sec. § F.3d 20 C.F.R. The claimant Servs., Human Health & demonstrating bears the burden of (3d Cir.1988)); also 20 see C.F.R. inability past to return to her relevant 404.1505(a). § A claimant is considered Shalala, work. Adorno v. any gainful in engage unable to substantial (3d Cir.1994). if activity “only physical his or mental If the claimant is unable to resume impairment impairments are of such occupation, her former the evaluation severity only he is to do unable step. moves to the final At stage, cannot, considering previous his work but production the burden of shifts to the education, age, experience, and work Commissioner, who must demonstrate any in kind of engage other substantial capable performing the claimant is in gainful work which exists the national deny other available work in 423(d)(2)(A). § economy....” 42 U.S.C. disability. claim of 20 C.F.R. disability This determination is made 404.1520(f). § The ALJ must show five-step the Commissioner based on a se jobs there existing signifi are other process promulgated quential evaluation economy cant numbers the national Security the Social Administration perform, which the claimant can consis (“SSA”). In See 20 C.F.R. 404.1520. impairments, tent with her medical age, Plummer, out this Court set the relevant education, past experience, work and re steps as follows: capacity. sidual functional The ALJ one, step must de- Commissioner analyze must the cumulative effect of all