Opinion

LOCURTO v. COMMISSIONER OF SOCIAL SECURITY

Court: District Court, D. New Jersey
Filed: Nov 17, 2021
Cited by: 0 cases
Authority: More cited than 25.4%

explaining that the series qualifier canon of statutory construction “‘provides that a modifier at the beginning or end of a series of terms modifies all the terms’”

How later courts described this case

explaining that the series qualifier canon of statutory construction “‘provides that a modifier at the beginning or end of a series of terms modifies all the terms’”
“The search for substantial evidence is thus a qualitative exercise without which our review of social security disability cases ceases to be merely deferential and becomes instead a sham.”
stating that substantial evidence exists only “in relationship to all the other evidence in the record”
“[T]he mere memorialization of a claimant’s subjective statements in a medical report does not elevate those statements to a medical opinion.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

PATRICIA L.,

Plaintiff,

Case No. 2:20-cv-6736

v. Magistrate Judge Norah McCann King

KILOLO KIJAKAZI,

Acting Commissioner of Social Security,

Defendant.

OPINION AND ORDER

This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,

as amended, 42 U.S.C. § 405(g), regarding the applications of Plaintiff Patricia L. for Disability

Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., for

Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et

seq., and for Widow’s Insurance Benefits, 42 U.S.C. §§ 402 et seq. Plaintiff appeals from the

final decision of the Acting Commissioner of Social Security denying those applications.1 After

careful consideration of the entire record, including the entire administrative record, the Court

decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil Procedure and Local

Civil Rule 9.1(f). For the reasons that follow, the Court affirms the Acting Commissioner’s

decisions.

I. PROCEDURAL HISTORY

Between July 2017, and May 2018, Plaintiff filed applications for disability insurance

benefits, supplemental security income, and disabled widow’s benefits, alleging that she has

1 Kilolo Kijakazi, the Acting Commissioner of Social Security, is substituted as Defendant in her

official capacity. See Fed. R. Civ. P. 25(d).

been disabled since March 7, 2016. R. 15, 41, 119, 125–26, 217–29. The applications were

denied initially and upon reconsideration. R. 15, 41, 127–31. Plaintiff sought a de novo hearing

before an administrative law judge. R. 134–35. Administrative Law Judge (“ALJ”) Robert

Schriver held a hearing on December 14, 2018, at which Plaintiff, who was represented by

counsel, testified, as did a vocational expert. R. 56–90. In substantially similar decisions dated

February 6, 2019, and February 25, 2020,2 the ALJ concluded that Plaintiff was not disabled

within the meaning of the Social Security Act from March 7, 2016, Plaintiff’s alleged disability

onset date, through the date of those decisions. R. 15–25, 41–51. Those decisions became the

final decisions of the Acting Commissioner of Social Security when the Appeals Council

declined review on April 1, 2020. R. 6–11 (addressing both ALJ decisions). Plaintiff timely filed

this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On November 20, 2020, Plaintiff

consented to disposition of the matter by a United States Magistrate Judge pursuant to 28 U.S.C.

§ 636(c) and Rule 73 of the Federal Rules of Civil Procedure. ECF No. 10.3 On that same day,

the case was reassigned to the undersigned. ECF No. 11. The matter is now ripe for disposition.

II. LEGAL STANDARD

A. Standard of Review

In reviewing applications for Social Security disability benefits, this Court has the

authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204

2 The Court agrees with the parties, Plaintiff’s Memorandum of Law, ECF No. 18, p. 2 n.1,

Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 19, p. 2, that these decisions were

the same except that the first decision, issued February 6, 2019, referred to only disabled

widow’s benefits, and the second decision, issued February 25, 2020, referred to disability

insurance benefits and supplemental security income. Compare R. 15–25, with R. 40–51.

3The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases

seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot

Project (D.N.J. Apr. 2, 2018).

F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to

determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d

Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). 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) (citation and internal quotations omitted); see K.K. ex rel. K.S. v. Comm’r of Soc. Sec.,

No. 17-2309 , 2018 WL 1509091, at *4 (D.N.J. Mar. 27, 2018). Substantial evidence is “less

than a preponderance of the evidence, but ‘more than a mere scintilla.”’ Bailey v. Comm’r of Soc.

Sec., 354 F. App’x 613, 616 (3d Cir. 2009) (citations and quotations omitted); see K.K., 2018

WL 1509091, at *4.

The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot

be set aside merely because the Court “acting de novo might have reached a different

conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli

v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“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.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,

2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or

substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d

1178, 1182 (3d Cir. 1992)).

Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic

or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)

(“The search for substantial evidence is thus a qualitative exercise without which our review of

social security disability cases ceases to be merely deferential and becomes instead a sham.”);

see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,

2016). The Court has a duty to “review the evidence in its totality” and “take into account

whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting

Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));

see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists

only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is

overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or

“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of

Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see

K.K., 2018 WL 1509091, at *4. The ALJ decision thus must be set aside if it “did not take into

account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.

at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).

Although an ALJ is not required “to use particular language or adhere to a particular

format in conducting [the] analysis,” the decision must contain “sufficient development of the

record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d

501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.

2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an

expression of the evidence s/he considered which supports the result, but also some indication of

the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121

(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication

of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing

Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a

comprehensive explanation for the rejection of evidence; in most cases, a sentence or short

paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Absent

such articulation, the Court “cannot tell if significant probative evidence was not credited or

simply ignored.” Id. at 705. As the Third Circuit explains:

Unless the [ALJ] has analyzed all evidence and has sufficiently explained the

weight [s/]he has given to obviously probative exhibits, to say that [the] decision is

supported by substantial evidence approaches an abdication of the court’s duty to

scrutinize the record as a whole to determine whether the conclusions reached are

rational.

Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.

Following review of the entire record on appeal from a denial of benefits, the Court can

enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or

without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the

record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or

contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,

221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a

complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the

record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see

A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016).

B. Sequential Evaluation Process

The Social Security Act establishes a five-step sequential evaluation for determining

whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4); see also id. at §§ 404.1520(a)(2) (“These rules apply to you if you file an

application for a period of disability or disability insurance benefits (or both) . . . . They also

apply if you file an application for widow’s or widower’s benefits based on disability for months

after December 1990.”), 404.1505(a) (“We will use this definition of disability if you are

applying for a period of disability, or disability insurance benefits as a disabled worker, . . . or,

with respect to disability benefits payable for months after December 1990, as a widow,

widower, or surviving divorced spouse.”); Andrew V. v. Saul, No. 2:19-CV-00392, 2020 WL

4572682, at *2 (E.D. Wash. Aug. 7, 2020) (“The definition of disability for disabled widower’s

benefits is the same as for the standard disability case and the five-step sequential evaluation

process is applicable to disabled widower’s benefits cases.”) (citing 20 C.F.R. §§ 404.1505(a);

404.1520(a)(4)(i)–(v)); Mace v. Colvin, No. 3:15CV1229, 2016 WL 6600004, at *1 (M.D. Pa.

Nov. 8, 2016) (“The standard for demonstrating disability when seeking widow’s benefits is the

same as the general disability standard[.]”) (citing 20 C.F.R. § 404.335(c)). “The claimant bears

the burden of proof at steps one through four, and the Commissioner bears the burden of proof at

step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010) (citing Poulos v.

Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).

At step one, the ALJ determines whether the plaintiff is currently engaged in substantial

gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, then the inquiry ends because the

plaintiff is not disabled.

At step two, the ALJ decides whether the plaintiff has a “severe impairment” or

combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability

to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the plaintiff does not

have a severe impairment or combination of impairments, then the inquiry ends because the

plaintiff is not disabled. Otherwise, the ALJ proceeds to step three.

At step three, the ALJ decides whether the plaintiff’s impairment or combination of

impairments “meets” or “medically equals” the severity of an impairment in the Listing of

Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §§

404.1520(d), 416.920(d). If so, then the plaintiff is presumed to be disabled if the impairment or

combination of impairments has lasted or is expected to last for a continuous period of at least 12

months. Id. at §§ 404.1509, 416.909. Otherwise, the ALJ proceeds to step four.

At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)

and determine whether the plaintiff can perform past relevant work. 20 C.F.R. §§ 404.1520(e),

(f), 416.920(e), (f). If the plaintiff can perform past relevant work, then the inquiry ends because

the plaintiff is not disabled. Otherwise, the ALJ proceeds to the final step.

At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,

age, education, and work experience, can perform other jobs that exist in significant numbers in

the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g). If the ALJ determines that the

plaintiff can do so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be

disabled if the impairment or combination of impairments has lasted or is expected to last for a

continuous period of at least twelve months.

III. ALJ DECISIONS AND APPELLATE ISSUES

Plaintiff was 55 years old on her alleged disability onset date. R. 23, 50. The ALJ found

that Plaintiff is the unmarried widow of a deceased insured worker who has attained the age of

50 and that Plaintiff met the non-disability requirements for disabled widow’s benefits set forth

in section 202(e) of the Social Security Act, 42 U.S.C. § 402(e). R. 44. For purposes of

disability insurance benefits, Plaintiff met the insured status requirements of the Social Security

Act through December 31, 2016. R. 17. For purposes of disabled widow’s insurance benefits,

the “prescribed period”4 ended on September 30, 2020. R. 44.

4 “To receive [disabled widow’s benefits], Plaintiff must establish that she became disabled prior

to … the date on which the prescribed period ended.” Randolph v. Comm'r of Soc. Sec., No. CV

2:19-846, 2020 WL 3619682, at *1 n.1 (W.D. Pa. July 1, 2020) (citing 20 C.F.R. § 404.335).

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

between March 7, 2016, the alleged disability onset date, and the dates of the administrative

decisions, February 6, 2019, and February 25, 2020. R. 17, 44.

At step two, the ALJ found that Plaintiff suffered from the following severe impairments:

major depressive disorder, recurrent, moderate; panic disorder without agoraphobia; and asthma.

R. 18, 44. The ALJ also found that the following diagnosed impairments were not severe:

hypothyroidism, high cholesterol, and high blood pressure. Id.

At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of

impairments that met or medically equaled the severity of any Listing. R. 18–19, 44–45.

At step four, the ALJ found that Plaintiff had the RFC to perform a full range of

exertional work subject to various non-exertional limitations. R. 19–23, 45–49. The ALJ also

found that this RFC did not permit the performance of Plaintiff’s past relevant work as a medical

assistant; sales assistant – jewelry; sales assistant – cosmetics; and exercise instructor. R. 23, 49–

50.

At step five, the ALJ found that a significant number of jobs—i.e., approximately 50,000

jobs as a mail clerk; approximately 300,000 jobs as a price marker; approximately 70,000 jobs as

a router clerk—existed in the national economy and could be performed by an individual with

Plaintiff’s vocational profile and RFC. R. 23–24, 50–51. The ALJ therefore concluded that

Plaintiff was not disabled within the meaning of the Social Security Act from March 7, 2016, her

alleged disability onset date, through the date of the administrative decisions. R. 24, 51.

“The prescribed period begins on the date of the wage earner’s death. The period ends the earlier

of: (1) the calendar month before the month the widow or widower attains age 60; or (2) the later

of seven years after the worker’s death, or seven years after the widow or widower was last

entitled to survivor’s benefits.” Id. (citing 20 C.F.R. § 404.335).

Plaintiff disagrees with the ALJ’s findings at step four and asks that the decision of the

Acting Commissioner be reversed and remanded with directions for the granting of benefits or,

alternatively, for further proceedings. Plaintiff’s Memorandum of Law, ECF No. 18; Plaintiff’s

Reply Brief, ECF No. 20. The Acting Commissioner takes the position that her decision should

be affirmed in its entirety because the ALJ’s decision correctly applied the governing legal

standards, reflected consideration of the entire record, and was supported by sufficient

explanation and substantial evidence. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF

No. 21.

IV. RELEVANT MEDICAL EVIDENCE

A. James C.Y. Chou, M.D.

On December 5, 2018, James C.Y. Chou, M.D., Plaintiff’s treating psychiatrist, completed

a three-page, check-the-box, and fill-in-the-blank form entitled, “Mental Capacity Assessment.”

R. 487–89, 516–18 (duplicate). Dr. Chou diagnosed Plaintiff with major depressive disorder,

recurrent, moderate (F33.1) and panic disorder without agoraphobia (F41.0). R. 487, 516. Dr.

Chou assessed Plaintiff’s ability to perform work-related activities on a day-to-day basis in a

regular setting, indicating the degree of limitation resulting from only psychological factors, by

rating Plaintiff’s limitations on a continuum using the following terms: none,5 mild,6 moderate,7

5 Where “none” is indicated, the claimant is “able to function in this area independently,

appropriately, effectively, and on a sustained basis.” Id.

6 A limitation is “mild” when the claimant’s “functioning in this area independently,

appropriately, effectively, and on a sustained basis is slightly limited.” Id.

7 A limitation is “moderate” when the claimant’s “functioning in this area independently,

appropriately, effectively, and on a sustained basis is fair.” Id.

marked,8 extreme,9 and unknown.10 Id. When assessing Plaintiff’s degree of limitation in her

ability to understand, remember, or apply information, Dr. Chou opined that Plaintiff had a

“moderate” limitation in her ability to follow one-to two-step oral instructions; “marked”

limitations in her abilities to recognize a mistake and correct it, or identify and solve problems,

and to sequence multi-step activities; and an “extreme” limitation in her ability to use reason and

judgment to make work-related decisions. Id. In support of these opinions, Dr. Chou explained:

“Pt has repeated anxiety attacks, and it’s almost impossible for her to make work-related

decisions when she panics.” Id. When assessing Plaintiff’s degree of limitation in her ability to

concentrate, persist, or maintain pace, Dr. Chou opined that Plaintiff had “moderate” limitations

in her abilities to initiate and perform a task that she knows how to do and work close to or with

others without interrupting or distracting them; “marked” limitations in her abilities to sustain an

ordinary routine and regular attendance at work and work a full day without needing more than

the allotted number or length of rest periods during the day; and “extreme” limitations in her

abilities to work at an appropriate and consistent pace, or complete tasks in a timely manner and

to ignore or avoid distractions while working. R. 488, 517. In support of these opinions, Dr.

Chou explained that, “[b]ecause of pt’s high anxiety, some days she cannot step outside her

house.” Id. When assessing Plaintiff’s degree of limitations in her ability to adapt or manage

herself, Dr. Chou found that Plaintiff had “moderate” limitations in her abilities to distinguish

between acceptable and unacceptable work performance, set realistic goals, maintain personal

8 A limitation is “marked” when the claimant’s “functioning in this area independently,

appropriately, effectively, and on a sustained basis is seriously limited.” Id.

9 A limitation is “extreme” when the claimant is “not able to function in this area independently,

appropriately, effectively, and on a sustained basis.” Id.

10 A limitation is “unknown” when the individual completing the assessment is “[u]nable to

assess limitations based on examination or review of medical records.” Id.

hygiene and attire appropriate to a work setting, and be aware of normal hazards and take

appropriate precautions; and “marked” limitations in her abilities to adapt to changes, manage

psychologically based symptoms, and make plans independently of others. Id. Dr. Chou left

blank the question asking him to describe the medical/clinical findings that support this

assessment. Id. When assessing Plaintiff’s degree of limitations in her ability to interact with

others, Dr. Chou found that Plaintiff had “moderate” limitations in her ability to cooperate with

others, or ask for help when needed, understand and respond to social cues, and respond to

requests, suggestions, criticism, correction and challenges; and “extreme” limitations in her

ability to keep social interactions free of excessive irritability, sensitivity, argumentativeness, or

suspiciousness. R. 489, 518. In support of these findings, Dr. Chou explained that “Pt is hyper

sensitive to people’s reactions to her.” Id. Finally, Dr. Chou opined that Plaintiff could manage

benefits in her own best interest. Id.

B. Jim Li, D.O.

On December 8, 2018, Jim Li, D.O., Plaintiff’s treating physician, completed a two-page,

check-the-box, and fill-in-the-blank form entitled, “Physical Assessment.” R. 482–83, 520–21

(duplicate). Dr. Li diagnosed Plaintiff with “Mild Asthma, HTN [hypertension], Hyperthyroid,

hypercholesterol.” R. 482, 520. Dr. Li opined that Plaintiff’s symptoms associated with these

conditions were severe enough to frequently interfere with the attention and concentration

required to perform simple work-related tasks. Id. When asked to identify the side effects of any

medications that may impact Plaintiff’s capacity for work, such as dizziness, drowsiness,

stomach upset, etc., Dr. Li responded that they were “unknown for psychiatry.” Id. Dr. Li opined

that Plaintiff would not need to recline or lie down during an 8-hour workday in excess of the

typical 15-minute break in the morning, the 30–60 minute lunch, and the typical 15-minute break

in the afternoon. Id. According to Dr. Li, Plaintiff could walk one-half of a city block without

rest or significant pain and sit for one hour and stand/walk for one hour in an eight-hour

workday. Id. Dr. Li opined that Plaintiff could occasionally (less than one-third of the eight-hour

workday) lift and carry less than ten pounds and could never lift and carry ten pounds or more.

Id. Dr. Li also found that Plaintiff had limitations in performing repetitive reaching, handling,

and fingering, finding that Plaintiff could grasp, turn, and twist objects with both hands 25% of

the time during an eight-hour workday; use the fingers of both hands for fine manipulation 50%

of the time during an eight-hour workday; and use her right arm for reaching 10% and left arm

for reaching 20% of the time during an eight-hour workday. Id. Based on objective medical,

clinical, and laboratory findings, Dr. Li stated, Plaintiff is likely to be absent from work once or

twice a month as a result of her impairments or treatments. R. 483, 521. Dr. Li also indicated that

Plaintiff’s impairments (physical impairments plus any emotional impairments) were reasonably

consistent with the symptoms and functional limitations described in this evaluation. Id.

V. DISCUSSION

Plaintiff argues that substantial evidence does not support the ALJ’s RFC determination.

Plaintiff’s Memorandum of Law, ECF No. 18; Plaintiff’s Reply Brief, ECF No. 20. Plaintiff

specifically argues that the ALJ erred in discounting the opinions of James C.Y. Chou, M.D.,

Plaintiff’s treating psychiatrist, and Jim Li, D.O., Plaintiff’s treating physician. Id. Plaintiff’s

arguments are not well taken.

A claimant’s RFC is the most that the claimant can do despite her limitations. 20 C.F.R.

§§ 404.1545(a)(1), 416.945(a)(1). At the administrative hearing stage, the administrative law

judge is charged with determining the claimant’s RFC. 20 C.F.R. §§ 404.1546(c), 416.946(c);

see also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The ALJ—not

treating or examining physicians or State agency consultants—must make the ultimate disability

and RFC determinations.”) (citations omitted). When determining a claimant’s RFC, the ALJ has

a duty to consider all the evidence. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999).

However, the ALJ need include only “credibly established” limitations. Rutherford v. Barnhart,

399 F.3d 546, 554 (3d Cir. 2005); see also Zirnsak v. Colvin, 777 F.3d 607, 615 (3d Cir. 2014)

(stating that the ALJ has discretion to choose whether to include “a limitation [that] is supported

by medical evidence, but is opposed by other evidence in the record” but “[t]his discretion is not

unfettered—the ALJ cannot reject evidence of a limitation for an unsupported reason” and

stating that “the ALJ also has the discretion to include a limitation that is not supported by any

medical evidence if the ALJ finds the impairment otherwise credible”).

Here, the ALJ determined that Plaintiff had the RFC to perform a full range of work at all

exertional levels, “but can have no exposure to respiratory irritants; she can perform only simple

tasks; make only simple work-related decisions; and can have only occasional contact with the

general public.” R. 19, 45. In making this determination, the ALJ detailed record evidence

regarding Plaintiff’s mental impairments, including, inter alia, Dr. Li’s July 14, 2017,

examination findings that described Plaintiff as neat and clean, without memory loss; Dr. Chou’s

August 2, 2017, examination at which Plaintiff reported that her life-time experience of anxiety

and panic attacks had worsened in the last year, that she felt depressed on a daily basis, was

suspicious about people following her, and was having difficulty sleeping; Dr. Chou’s findings

on mental status examination that Plaintiff’s attention, concentration, memory, and general

information were intact; Plaintiff’s report on September 6, 2017l, to a social worker, Jui-En Shih,

of anxiety that impaired her daily functioning, and a persistent depressive mood, with several

recent events increasing these symptoms, but Plaintiff also reported to Ms. Shih that her

depressive mood had “cleared out” and that she had more energy to complete tasks; Ms. Shih’s

diagnoses of major depressive disorder, recurrent, moderate, and panic disorder without

agoraphobia; Dr. Chou’s January 31, 2018, characterization of Plaintiff’s conditions as stable

with current medication; Dr. Chou’s October 3, 2018, comment that Plaintiff’s anxiety and panic

attacks were stable on medication; Plaintiff statement to Dr. Chou that she was trying to find a

career in cosmetics; Dr. Chou’s findings on examination that Plaintiff’s symptoms of depression

were depressed mood, decreased interests, decreased energy, appetite changes, hopelessness,

impaired concentration and psychomotor retardation and that her symptoms of anxiety were

palpitation, excessive worry, shortness of breath, and profuse sweating, but that Plaintiff’s

attention, concentration, memory, and general information were all intact and her affect was

constricted, her mood was anxious, and her thought process was normal; Dr. Chou’s diagnoses

of major depressive disorder, recurrent, moderate, and panic disorder without agoraphobia;

Plaintiff’s October 11, 2018, report to Dr. Chou that her anxiety made it difficult to attend

therapy sessions, that she has been dealing with depression for many years, and Dr. Chou’s

diagnoses of major depressive disorder, recurrent, moderate, and panic disorder without

agoraphobia. R. 20–21, 47–48.

The ALJ also detailed record evidence regarding Plaintiff’s physical impairments,

including, inter alia, a normal physical examination on April 27, 2015; Plaintiff’s complaint

during a physical examination by Dr. Li on July 14, 2017, of occasional lower back pain and

concern about possible Lyme disease following a tick bite; Dr. Li’s findings of bilateral

expiratory wheezes and fair to good air entry, tenderness at the lower back and decreased range

of motion; Dr. Li’s advice that Plaintiff’s acute back pain would resolve within one to two

weeks; Dr. Li’s findings on July 24, 2017, of tenderness and decreased range of motion at both

shoulder joints, without significant swelling; Plaintiff’s July 31, 2017, complaint to Dr. Li of leg

swelling; Dr. Li’s diagnoses of essential (primary) hypertension, localized edema, and

hypothyroidism; an abnormal liver function test on August 14, 2017; Dr. Li’s August 22, 2017,

finding of no apparent hyper- or hypothyroid symptoms on current management; Dr. Li’s August

24, 2017, diagnoses of other specified hypothyroidism, intermittent back pain and shoulder pain,

worsening with bending and twisting, mild intermittent asthma, essential hypertension, and sting

from a non-venomous insect; findings of blood pressure of 138/86, trace edema of both legs,

tenderness at bilateral shoulder joints, tenderness at the low back, and bilateral air entry with

expiratory wheezes; ibuprofen was used for pain; and an October 16, 2017, notation of no

apparent hypothyroid symptoms on current management. R. 19–20, 46–47. The ALJ went on to

summarize his findings supporting the RFC determination as follows:

In summary, the medical record does not demonstrate that the claimant has any

significant physical limitations. Her diagnosis of asthma requires continued

medication and the need to avoid environmental irritants. The mental health record

does demonstrate a chronic psychiatric condition, going back many years, and

evident during the period when she was successfully working in spite of the

problems she faced. It is evident that she has struggled with several recent personal

setbacks that were emotionally troubling for her. However, with proper treatment

and medication, her condition has been described as stable. She remains capable of

meeting the mental demands of simple, unskilled work, with necessary limitations

on public contact and decision making incorporated in the functional capacity

established.

R. 23, 49. In the view of this Court, this record contains substantial evidence to support the

ALJ’s RFC determination. See Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d at 554; Plummer,

186 F.3d at 429.

Plaintiff, however, challenges this RFC determination, arguing that the ALJ erred when

assessing the opinions of, inter alios, Dr. Chou, Plaintiff’s treating psychiatrist. Plaintiff’s

Memorandum of Law, ECF No. 18, pp. 14–21; Plaintiff’s Reply Brief, ECF No. 20, pp. 4–10.

After summarizing Dr. Chou’s objective findings, treatment, and opinions, the ALJ found Dr.

Chou’s opinions “not at all persuasive[,]” reasoning as follows:

After careful consideration of the evidence, I find that the claimant’s medically

determinable impairments could reasonably be expected to cause the alleged

symptoms; however, the claimant’s statements concerning the intensity, persistence

and limiting effects of these symptoms are not entirely consistent with the medical

evidence and other evidence in the record for the reasons explained in this decision.

This finding is made in light of the medical and mental health record, which does

not provide objective evidence that would confirm the extent and severity of the

conditions that the claimant has alleged. Although the claimant presented at the

hearing as very emotional, the psychiatric record does not reflect the severity of

depression and panic attacks that the claimant has alleged, and the nature of her

treatment was not consistent with what would be expected in cases of marked or

severe mental impairments.

As noted above, the claimant’s treating psychiatrist, Dr. Chou, has consistently

found her to have mild to moderate levels of depression, and has provided treatment

consistent with that (Exhibit 4F). Treatment records consistently note in mental

status examinations that the claimant’s memory, attention and concentration were

intact, thought processes were normal, and she was without more severe symptoms

of delusions, paranoia or hallucinations. When seen in 2017 by Ms. Shih, the

therapist, and by Dr. Chou, the claimant’s symptoms were characterized as mild,

and the claimant was stable on her current medication. Therefore, Dr. Chou’s later

mental functional assessment responses, which showed multiple marked and severe

impairments, are not all persuasive; they are not supported by his treatment notes,

and are inconsistent with the record as a whole (Exhibits 4F and 6F).

R. 22, 48–49.

Plaintiff raises several challenges to this assessment. Plaintiff first contends that the ALJ

failed to properly discuss the relevant regulatory factors—supportability and consistency—when

discounting Dr. Chou’s opinions, arguing that the ALJ’s reasoning that Dr. Chou’s opinions

“‘were inconsistent with his own findings and the record as a whole’” is a “single, conclusory

sentence’ . . . [that] fails to address conflicting evidence in the record.’” Plaintiff’s Memorandum

of Law, ECF No. 18, p. 14 (quoting Beerhalter v. Comm’r of Soc. Sec., No. C19-cv-17561, 2020

WL 5627015, at *7 (D.N.J. Aug. 18, 2020)). Plaintiff also argues that the ALJ mischaracterized

the evidence when he found that the mental status examinations revealed that Plaintiff’s

conditions were stable. Id. at 14–16. “The ALJ’s rationale for discounting the opinion of Dr.

Chou[] based on ‘stability’ is simply incorrect.” Id. at 17. Plaintiff specifically contends that,

even when her conditions were characterized as “stable,” she still exhibited symptoms despite

her medication. Id. at 15–17. For the reasons that follow, the Court is not persuaded that this

issue requires remand.

An ALJ must evaluate all record evidence in making a disability determination. Plummer,

186 F.3d at 433; Cotter, 642 F.2d at 704. The ALJ’s decision must include “a clear and

satisfactory explication of the basis on which it rests,” sufficient to enable a reviewing court “to

perform its statutory function of judicial review.” Cotter, 642 F.2d at 704–05. Specifically, the

ALJ must discuss the evidence that supports the decision, the evidence that the ALJ rejected, and

explain why the ALJ accepted some evidence but rejected other evidence. Id. at 705–06; Diaz v.

Comm’r of Soc. Sec., 577 F.3d 500, 505–06 (3d Cir. 2009); Fargnoli v. Massanari, 247 F.3d 34,

42 (3d Cir. 2001) (“Although we do not expect the ALJ to make reference to every relevant

treatment note in a case . . . 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.”). Without this explanation, “the reviewing court cannot tell if significant probative

evidence was not credited or simply ignored.” Cotter, 642 F.2d at 705; see also Burnett, 220

F.3d at 121 (citing Cotter, 642 F.2d at 705).

For claims filed after March 27, 2017,11 the regulations eliminated the hierarchy of

medical source opinions that gave preference to treating sources. Compare 20 C.F.R. §§

404.1527, 416.927 with 20 C.F.R. §§ 404.1520c(a) (providing, inter alia, that the Commissioner

will no longer “defer or give any specific evidentiary weight, including controlling weight, to

11 As previously noted, Plaintiff’s claims were filed between July 2017 and May 2018.

any medical opinion(s) or prior administrative medical finding(s), including those from [the

claimant’s] medical sources”), 416.927c(a) (same). Instead, the Commissioner will consider the

following factors when considering all medical opinions: (1) supportability; (2) consistency; (3)

relationship with the claimant, including the length of the treating examination, the frequency of

examinations, and the purpose of the treatment relationship; (4) the medical source’s

specialization; and (5) other factors, including, but not limited to, “evidence showing a medical

source has familiarity with the other evidence in the claim or an understanding of our disability

program's policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c(c), 416.920c(c).

The regulations emphasize that “the most important factors [that the ALJ and

Commissioner] consider when [] evaluat[ing] the persuasiveness of medical opinions and prior

administrative medical findings are supportability (paragraph (c)(1) of this section) and

consistency (paragraph (c)(2) of this section).” Id. at §§ 404.1520c(a), 419.920c(a). As to the

supportability factor, the regulations provide that “[t]he more relevant the objective medical

evidence and supporting explanations presented by a medical source are to support his or her

medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical

opinions or prior administrative medical finding(s) will be.” Id. §§ 404.1520c(c)(1),

416.920c(c)(1); see also Revisions to Rules Regarding the Evaluation of Medical Evidence, 82

Fed. Reg. 5844-01, 2017 WL 168819, at *5833 (Jan. 18, 2017) (explaining that “supportability”

is “the extent to which a medical source’s opinion is supported by relevant objective medical

evidence and the source's supporting explanation”). As to the consistency factor, the regulations

provide that “[t]he more consistent a medical opinion(s) or prior administrative medical

finding(s) is with the evidence from other medical sources and nonmedical sources in the claim,

the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.”

20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).

The applicable regulations further require the ALJ to articulate his or her “consideration

of medical opinions and prior administrative medical findings” and articulate in the

“determination or decision how persuasive [he or she] find[s] all of the medical opinions and all

of the prior administrative medical findings in [the claimant’s] case record.” Id. at §§

404.1520c(b), 416.920c(b). Specifically, the ALJ must explain how he or she considered “the

supportability and consistency factors for a medical source’s medical opinions or prior

administrative medical findings[,]” and may, but is not required to, explain how he or she

considered the other remaining factors. id. at §§ 404.1520c(b)(2), 416.920c(b)(2).

Here, the ALJ, after detailing the evidence relating to Plaintiff’s mental impairments,

explained that Dr. Chou’s assessment of Plaintiff’s functional limitations “are not at all

persuasive; they are not supported by his treatment notes, and are inconsistent with the record as

a whole (Exhibits 4F and 6F).” R. 22, 49; see also 20 C.F.R. §§ 404.1520c(c)(1) (addressing the

supportability factor when considering medical opinions), 416.920c(c)(1) (same); 20 C.F.R. §

404.1520c(c)(2) (addressing the consistency factor when considering medical opinions),

416.916c(c)(2). As Plaintiff concedes, Plaintiff’s Memorandum of Law, ECF No. 18, pp. 14–15,

the ALJ supported this conclusion by noting that Plaintiff’s “memory, attention and

concentration were intact, thought processes were normal, and she was without more severe

symptoms of delusions, paranoia or hallucinations”; that Plaintiff’s symptoms in 2017 were

characterized as mild by Ms. Shih and Dr. Chou; and that Plaintiff “was stable on her current

medication.” R. 22, 49. In other words, the ALJ specifically considered the supportability and

consistency factors and explained why Dr. Chou’s treatment notes and other evidence in the

record rendered his opinions regarding Plaintiff’s limitations as unpersuasive. See id.

Accordingly, based on this record, the Court cannot find that the ALJ failed to properly consider

the supportability and consistency of Dr. Chou’s opinions in accordance with the governing

regulations. See 20 C.F.R. §§ 404.1520c(c)(1)–(2), 416.920c(c)(1)–(2); see also Serrano v.

Kijakazi, No. CV 20-3985, 2021 WL 4477137, at *3–4 (E.D. Pa. Sept. 30, 2021) (“Here, the ALJ

explicitly considered the supportability and consistency factors relative to Mr. Martelo’s opinion

by stating that the opinion was not well supported by and was inconsistent with the mental health

records. R. at 27. The ALJ had no further responsibility to cite to the record, which contained

over 1,000 pages.”); Debevits v. Saul, No. CV 20-600, 2021 WL 2590140, at *4 (W.D. Pa. June

24, 2021) (finding that the ALJ “appropriately assessed Dr. Kellis’ medical opinion in light of

these standards” under 20 C.F.R. §§ 404.1520c, 416.920c where the ALJ concluded that a

physician’s opinion was not persuasive because “the limitations [the physician] espoused were

not consistent with or supported by other evidence of record” such as, inter alia, the treatment

records, for instance, indicated a greater ability to walk, lift, and stand”); Miller v. Kijakazi, No.

CV 20-1148, 2021 WL 3852075, at *2–3 (W.D. Pa. Aug. 27, 2021) (stating that the ALJ “is

required to articulate how persuasive he/she finds the medical opinions” and, “[t]herefore, the

ALJ must explain how he/she considered the supportability and consistence of the an opinion”

and finding the “ALJ’s manner of assessing said evidence is consistent with the new regulations

[under 20 C.F.R. §§ 404.1520c, 416.920c] governing this case” where the ALJ “directly

addressed the opinion and discussed why he found it to be inconsistent with and unsupported by

the evidence of record” where that physician’s treatment notes “indicate the claimant has had

little treatment and no recommendations for inpatient treatment since the alleged onset date”);

Guillory v. Saul, No. 1:19-CV-632, 2021 WL 1600283, at *6 (E.D. Tex. Apr. 23, 2021) (finding

that “the ALJ properly addressed the supportability factor [under 20 C.F.R. §§ 404.1520c and

416.920c] because the ALJ reasoned that Dr. Kanneganti’s opinion was mostly unpersuasive

because his opinion lacked support from objective medical evidence” and finding that “the ALJ

properly addressed the consistency factor [under 20 C.F.R. §§ 404.1520c and 416.920c] because

the ALJ noted that Dr. Kanneganti’s opinion was not entirely consistent with Plaintiff’s mental

status exams” that “showed euthymic (normal) or neutral mood, intact memory, good

concentration, no cognitive issues, and no difficulties in social functioning”); Zajac v. Comm’r of

Soc. Sec., No. 1:20-CV-135, 2021 WL 1169466, at *4 (W.D. Mich. Mar. 29, 2021) (finding that

the ALJ properly analyzed an opinion under §§ 404.1520c(c)(1)–(2) and 416.920c(c)(1)–(2)

where the ALJ “articulated proper bases for finding the opinion unpersuasive, namely,

consistently normal physical and mental examination findings, and she supported her reasons

with citations to specific evidence in the record”); Erin H. v. Saul, No. 2:20-CV-00191-MKD,

2021 WL 1182366, at *9 (E.D. Wash. Mar. 29, 2021) (stating that the “ALJ’s finding that Dr.

Clark’s opinion is inconsistent with the longitudinal record was a specific and legitimate reason,

supported by substantial evidence to reject the opinion[,]” including that “the treatment records

generally reflect normal psychological functioning, including normal mood, affect, memory,

orientation, behavior, concentration, attention, fund of knowledge, speech, comprehension,

insight, and judgment”).12

12 To the extent that Plaintiff relies on Beerhalter to argue that the ALJ’s consideration of Dr.

Chou’s opinions in this case were insufficient, that reliance is unavailing. In Beerhalter, the

Court found, inter alia, that the ALJ did not sufficiently address the consistency factor because

“the single, conclusory sentence the ALJ provides fails to address conflicting evidence in the

record” where the “ALJ’s reliance on Dr. Davis’ opinion is contradictory, given that it is subject

to the same age issue that caused the ALJ to reject Dr. Slaughter’s opinion” and “it is unclear

how the VAMC record serves as a basis for rejecting Dr. Slaughter’s opinion.” Beerhalter, 2020

WL 5627015, at *7. Here, for the reasons already discussed and for the additional reasons

discussed later in this decision, Beerhalter is factually inapposite.

Plaintiff also complains that the ALJ failed to note that Plaintiff’s “stable” “baseline is

still supportive of Dr. Chou’s opinion[,]” arguing further that “‘stability does not typically mean

a patient is experiencing no problems, or is ‘fine’” and that the ALJ erroneously interprets

“stable” as meaning that Plaintiff’s condition is “good.” Plaintiff’s Memorandum of Law, ECF

No. 18, p. 15. Plaintiff’s arguments are not well taken. As a preliminary matter, as detailed

above, the fact that Plaintiff was characterized as “stable” on medication was only one of several

factors that the ALJ listed when explaining why he discounted Dr. Chou’s more extreme

opinions. R. 22, 48–49. Moreover, stable mental health examination findings can provide

substantial evidence to support an ALJ’s conclusions. See Bucci for & on Behalf of Eland v.

Saul, No. CV 19-368, 2020 WL 709516, at *6 (W.D. Pa. Feb. 12, 2020) (affirming denial of

benefits where “more than a scintilla of evidence supports the ALJ’s conclusions[,]” including,

inter alia, that “Plaintiff exhibited stable mental health when he complied with medication”); cf.

Louis v. Comm’r Soc. Sec., 808 F. App’x 114, 121 (3d Cir. 2020) (finding ALJ “entitled to

discount” a treating source’s earlier assessment “where it was undermined by the more ‘detailed,

longitudinal picture” provided by his later medical assessments[,]” which revealed that the

claimant was “consistently calm and cooperative upon exam, and her prognosis was ‘good’” and

objective evidence supported the ALJ’s finding that mental impairments did not prevent the

claimant from engaging in substantial gainful activity where “she was consistently noted to be

calm and cooperative, reportedly got along with immediate family, friends, and neighbors, could

shop in stores by herself, attended community events, and had consistently normal findings with

her cognition, memory, speech, judgment and insight”). In addition, as Plaintiff apparently

concedes, it was Dr. Chou, not the ALJ, who characterized Plaintiff as “stable.” See, e.g., R. 375

(reflecting Dr. Chou’s note that Plaintiff was “stable” with current medication), 379 (same), 383

(same), 389 (same), 395 (same), 399 (same), 403 (same), 408 (same), 413 (same), 416 (same),

421 (same), 424 (same), 427 (same), 440 (same), 478 (same). To the extent that Plaintiff

complains that she continued to experience symptoms despite medication, the ALJ specifically

acknowledged those complaints in his decision. R. 20 (noting that Plaintiff complained to Dr.

Chou of increased anxiety and panic attacks, daily depression, suspicious about people following

her, and difficulty sleeping), 47 (same); 21 (noting that Plaintiff complained that she was unable

to work because of, inter alia, severe and frequent panic attacks, emotional pain, depression, and

anxiety), 48 (same). However, the ALJ went on to explain why he discounted Plaintiff’s

subjective statements as not entirely consistent with the objective medical record: