MEACHAM v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SAMANTHA RENEE MEACHAM : CIVIL ACTION

:

v. :

:

ANDREW M. SAUL,1 :

Commissioner of Social Security :

Administration : NO. 18-5245

MEMORANDUM OF DECISION

THOMAS J. RUETER

United States Magistrate Judge September 13, 2019

Plaintiff, Samantha Renee Meacham, filed this action pursuant to 42 U.S.C. §

405(g), seeking judicial review of the final decision of the Commissioner of the Social Security

Administration (“Commissioner”) denying her claim for disability insurance benefits (“DIB”)

under Title II of the Social Security Act (“Act”) and supplemental security income (“SSI”) under

Title XVI of the Act.

Plaintiff filed a Brief and Statement of Issues in Support of Request for Review

(Doc. 14) (“Pl.’s Br.”) and defendant filed a Response to Plaintiff’s Request for Review (“Def.’s

Br.”). For the reasons set forth below, the court recommends that plaintiff’s Request for Review

be DENIED.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff filed applications for DIB and SSI on July 27, 2015, alleging disability

beginning August 1, 2014. (R. 170-80.) Plaintiff’s claims were denied initially and she filed a

1 On June 4, 2019, Andrew M. Saul became the Commissioner of the Social Security

Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul

should be substituted as the defendant in this case.

timely request for a hearing. (R. 68-97, 100-11.) A hearing was held on October 31, 2017,

before Administrative Law Judge (“ALJ”) Susannah Merritt. (R. 32-67.) Plaintiff, represented

by counsel, appeared and testified. Christine Carrozza-Slusarski, a vocational expert (“VE”),

also appeared and testified. At the administrative hearing, plaintiff’s counsel requested that the

alleged onset date be amended to October 25, 2014. (R. 36.) In a decision dated December 28,

2017, the ALJ found that plaintiff was not disabled under the Act. (R. 12-31.) The ALJ made

the following findings:

1. The claimant meets the insured status requirements of the Social Security

Act through December 31, 2019.

2. The claimant has not engaged in substantial gainful activity since October

25, 2014, the amended alleged onset date. (20 CFR 404.1571 et seq., and

416.971 et seq.).

3. The claimant has the following severe impairments: multiple sclerosis

(MS), headaches, bipolar disorder, anxiety disorder, and myalgia in the

right leg. (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments

that meets or medically equals the severity of a listed impairment in 20

CFR Part 404, Subpart P, Appendix 1. (20 CFR 404.1520(d), 404.1525,

404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, I find that the claimant has

the residual functional capacity to perform light work as defined in 20

CFR 404.1567(b) and 416.967(b) except that in an eight hour workday,

she can sit for six hours, stand for four hours, and walk for four hours. In

addition, she can occasionally climb ramps and stairs, balance, stoop,

kneel, crouch, and crawl but can never climb ladders, ropes, or scaffolds.

She can tolerate occasional exposure to unprotected heights, moving

mechanical parts, and extreme cold. She is further limited to the

performance of simple, routine, and repetitive tasks that are not at a

production rate pace, i.e. no assembly line work. Finally, the work must

involve only simple work-related decisions with few changes in a routine

work setting and no more than occasional interaction with the public, co-

workers, and supervisors.

6. The claimant is unable to perform any of his past relevant work. (20 CFR

404.1565 and 416.965).

7. The claimant was born on June 29, 1980 and was 34 years old, which is

defined as a younger individual age 18-49, on the alleged disability onset

date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to

communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of

disability because using the Medical-Vocational Rules as a framework

supports a finding that the claimant is “not disabled,” whether or not the

claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,

Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the

national economy that the claimant can perform (20 CFR 404.1569,

404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social

Security Act, from October 25, 2014, through the date of this decision (20

C.F.R. 404.1520(g) and 416.920(g)).

(R. 14-25.)

Plaintiff filed a request for review of the decision of the ALJ that was denied and

the ALJ’s decision became the final decision of the Commissioner. (R. 1-8, 163-69.) Plaintiff

now seeks judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g).

II. STANDARD OF REVIEW

The role of this court on judicial review is to determine whether there is

substantial evidence in the record to support the Commissioner’s decision. Hagans v. Comm’r of

Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing 42 U.S.C. § 405(g)), cert. denied, 571 U.S.

1204 (2014); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is

defined as “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is more than a mere scintilla of

evidence, but may be less than a preponderance of the evidence. Jesurum v. Sec’y of U.S. Dep’t

of Health and Human Serv., 48 F.3d 114, 117 (3d Cir. 1995). This court may not weigh

evidence or substitute its conclusions for those of the fact-finder. Burns v. Barnhart, 312 F.3d

113, 118 (3d Cir. 2002) (citing Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). As

the Third Circuit has stated, “so long as an agency’s fact-finding is supported by substantial

evidence, reviewing courts lack power to reverse . . . those findings.” Monsour Med. Ctr. v.

Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).

To be eligible for benefits, the claimant must demonstrate an “inability to engage

in any substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A). Specifically, the impairments must be such that the claimant “is not only unable

to do his previous work but cannot, considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B). Under the Act, the claimant has the burden of proving the

existence of a disability and must furnish medical evidence indicating the severity of the

impairment. 42 U.S.C. §§ 423(d)(5), 1382c(a)(3)(H)(i).

The Social Security Administration employs a five-part procedure to determine

whether an individual has met this burden. 20 C.F.R. §§ 404.1520, 416.920.2 This process

requires the Commissioner to consider, in sequence, whether a claimant: (1) is currently

employed; (2) has a severe impairment; (3) has an impairment which meets or equals the

2 For purposes of this opinion, the court will refer to the version of the relevant regulation

in effect at the time of the ALJ’s decision on December 28, 2017.

requirements of a listed impairment; (4) can perform past relevant work; and (5) if not, whether

the claimant is able to perform other work, in view of his age, education, and work experience.

See id. The claimant bears the burden of establishing steps one through four of the five-step

evaluation process, while the burden shifts to the Commissioner at step five to show that the

claimant is capable of performing other jobs existing in large numbers in the national economy.

Hess v. Comm’r of Soc. Sec., 931 F.3d 198, 201 (3d Cir. 2019).

III. BACKGROUND

At the commencement of the October 31, 2017 administrative hearing, plaintiff’s

counsel requested that the alleged onset date be amended to October 25, 2014. (R. 36.) Counsel

noted that plaintiff has a history of substance abuse in remission; the amended alleged onset date

corresponds to the date of last drug use. Id.3

Plaintiff, who was thirty-seven years old at the time of the administrative hearing,

testified that she lived in apartment with her fiancé and five-year-old daughter. (R. 36, 38.)

Plaintiff drives and “rarely” takes public transportation, although she used public transportation

to travel to the administrative hearing. (R. 39.) Plaintiff graduated from high school and

completed approximately four semesters of schooling at Delaware County Community College.

Id. She stopped attending school when she became pregnant with her daughter in 2011. (R. 40.)

Plaintiff last worked in 2015, when she was employed for one month as a part-

time cashier at Chipotle. Id. Plaintiff explained that her employment was terminated because

she “wasn’t catching on to their computer system and it just wasn’t working out.” (R. 41.) Prior

to this employment, plaintiff worked full-time at Santander Bank for eight years. Id. She

3 Plaintiff’s counsel indicated that the request to amend the alleged onset date was made

“[s]o there’s no question about interference with the mental health issues.” (R. 37.)

worked as head teller for two of the eight years. Id. In this role, plaintiff supervised one other

employee. Id. With respect to the physical requirements of the teller job, plaintiff testified that

she was permitted to perform the work while sitting or standing. (R. 41.) The heaviest item that

she was required to lift was a box of coins. (R. 42.) Plaintiff’s responsibilities also included

accurately maintaining her cash drawer and interacting with customers. (R. 43.) In addition, the

position included sales duties; tellers were to sell various bank products such as credit cards and

bank accounts. Id. Plaintiff indicated that she stopped working as a bank teller when she began

experiencing “brain fog,” became frustrated, and felt that she could no longer perform the job.

(R. 46.) Plaintiff was not terminated from this employment, but acknowledged that she “had

started getting written up a lot at that point.” Id. Prior to working as a bank teller, plaintiff

worked from 2001 to 2005 as a part-time clerk in a video store. (R. 43-44.) In addition, plaintiff

worked full-time from 2002 to 2005 in the customer service department of Sharper Image. (R.

44-45.)

When asked to explain why she is unable to work, plaintiff stated that she

experiences “really horrible pain” in her legs. (R. 46.) She noted that her legs “are always

tender” and that she also experiences shooting pain, which sometimes is alleviated by laying

down and sometimes is alleviated by standing. Id. Plaintiff also experiences back pain and brain

fog. Id. Plaintiff takes Neurontin and Gabapentin daily for pain. (R. 47.) Plaintiff also takes

Methadone. Id.4 She acknowledged a history of substance abuse, but represented that she last

used drugs or alcohol in October 2014. Id. Plaintiff also explained that she was incarcerated

from October 2014 until January 2015, at which time she entered inpatient rehab. Id. She

4 Plaintiff testified that she also takes Baclofen, Zantac, Wellbutrin, and Latuda. (R. 48.)

She denied experiencing side effects from any of the medication. Id. In addition, plaintiff takes

medication to treat the symptoms of MS. (R. 57.)

resided in a halfway house until February 2015. Id. In addition, plaintiff participated in an

intensive outpatient program for one year at NHS Parkside (“NHS”) and regained custody of her

daughter during that time. (R. 47-48.)

With respect to her mental impairments, plaintiff stated that she had been taking

Latuda to treat bipolar depression for one month. (R. 48.) She had taken Buspar for anxiety and

Wellbutrin for depression for approximately one year. Id. This medication was prescribed by

the psychiatrist at NHS, whom she met with on a monthly basis for three to four months. (R.

49.) Plaintiff indicated that she also met with a therapist on a weekly basis. Id. Before she

commenced mental health treatment at NHS, plaintiff met monthly with a psychiatrist as part of

her drug and alcohol treatment program. Id. This treatment began in October 2014. Id.

Plaintiff explained that while her symptoms of anxiety and depression have improved “a little

bit” since she began taking medication, she continues to feel depressed due to her limitations. Id.

Plaintiff also receives treatment from a primary care physician; a neurologist treats plaintiff for

MS. (R. 50-51.) Plaintiff met with these physicians three to four times per year. (R. 51.)

With respect to her daily activities, plaintiff testified that each day she gets

dressed and then drives to the methadone clinic for treatment. (R. 52-53.) She also attends

therapy if it is scheduled. (R. 53.) Upon returning home, plaintiff rests, then drives to school to

pick up her daughter. Id. After school, plaintiff helps her daughter with homework. (R. 54.)

Plaintiff’s fiancé typically cooks dinner and goes grocery shopping, although plaintiff cooks

“every once in a while” and can go shopping “if [she has] to.” (R. 54-55.) Plaintiff’s fiancé does

the family’s laundry at a laundromat. (R. 55.) Plaintiff indicated that her fiancé performs the

other household chores such as cleaning the bathroom and vacuuming, because it is difficult for

her to complete such tasks. (R. 56.) In her free time during the day, plaintiff also reads, knits,

and meditates. (R. 55.) With her daughter, plaintiff colors, plays games on a tablet, watches

movies, and goes to the park. (R. 56.)

In response to questioning by her attorney, plaintiff explained that she has a need

to rest during the day because she “gets really tired, really easily.” (R. 57.) Due to fatigue, she

can knit or read for no longer than thirty minutes. Id. When asked to describe the shooting pain

she experiences in her thighs, plaintiff explained that the pain occurs “a couple times a day” and

awakens her at night. Id. At times, plaintiff has difficulty getting out of bed in the morning due

to pain and mental fatigue. (R. 58.) Plaintiff must rest if she has to walk more than two blocks.

Id. She estimated that she can stand for thirty minutes before she must move; she can sit only for

“an hour or two.” (R. 58-59.) Plaintiff also has difficulty climbing stairs. (R. 59.) She noted

that she gets winded and has pain in her thighs when she climbs the flight of stairs at the

methadone clinic. Id. She estimated that she can lift and carry items weighing up to ten pounds.

Id. Although leg pain occasionally awakens her at night, plaintiff does not otherwise experience

sleep difficulty. Id. Cold weather exacerbates her leg pain. (R. 60.)

The VE testified that plaintiff’s past work as a teller, and as a head teller, was

skilled, light work as performed. (R. 61-62.) In addition, the customer service position was

skilled, sedentary work. (R. 62.) The ALJ asked the VE to consider a hypothetical individual of

plaintiff’s age, education, and work history, who is limited as follows:

The individual is at a light exertional level with the modification of standing or

walking for four hours out of the eight hour work day. In addition, the individual

can climb stairs and ramps occasionally; never climb ladders, ropes, or scaffolds.

The individual can occasionally balance, stoop, kneel, crouch, crawl. And the

individual can work at unprotected heights occasionally; moving mechanical

parts, occasionally; and occasionally be exposed to extreme cold. In addition, the

individual is limited to performing simple routine and repetitive tasks, but not at a

production rate pace. The individual can make simple work-related decisions,

and can respond appropriately to supervisors, coworkers, and the public on an

occasional basis. The individual is limited to tolerating only occasional changes

in the work setting.

(R. 62-63.) The VE testified that such hypothetical individual would not be able to perform

plaintiff’s past work, but could perform the following unskilled, light jobs: sorter (for which

there are approximately 51,000 jobs in the national economy); marker or tagger for retail

products (for which there are approximately 58,000 jobs in the national economy); and inspector

for surgical instruments (for which there are approximately 51,000 jobs in the national

economy). (R. 63.) The VE confirmed that her testimony was consistent with the Dictionary of

Occupational Titles (“DOT”), except as described based on her personal experience. (R. 63-64.)

The ALJ posed a second hypothetical question to the VE, in which the

hypothetical individual had the same limitations as in the first hypothetical, but was limited to

sedentary work. (R. 64.) The VE opined that such hypothetical individual could perform the

following unskilled, sedentary jobs: clerical addresser/envelope addresser (for which there are

approximately 35,000 jobs in the national economy); table worker/inspector of small products

(for which there are approximately 51,000 jobs in the national economy); and stuffer (for which

there are approximately 38,000 jobs in the national economy). Id. The VE again confirmed that

such testimony was consistent with the DOT. Id. The ALJ then asked the VE whether the

individual in the first hypothetical question would be able to perform work in the national

economy if she were off-task ten percent of the work day on a regular basis. (R. 65.) The VE

indicated that if an employee is “off-task up to 10% . . . that would be acceptable with many

employers. Beyond that, it’s generally not accepted, based on my experience.” Id.5

5 When again asked if her testimony was consistent with the DOT, the VE replied, “[y]es,

it generally is and it’s just, again, the stand/walk is based on my experience, and then the –

additionally the off-task is really based on my experience as a vocational counselor of over 30

years viewing positions, talking to managers, placing individuals.” (R. 65.)

In response to questioning by plaintiff’s attorney, the VE testified that an

individual who has “serious limitations” with “substantial loss in the ability to effectively

function” in her ability to interact appropriately with supervisors, and to respond appropriately to

usual work situations and to changes in a routine work setting, would be unable to maintain

competitive employment. (R. 65-66.) In addition, the VE confirmed that no work would be

available for an individual with three or more absences per month on a consistent basis. (R. 66.)

IV. DISCUSSION

The ALJ found that the evidence of record supports a finding that plaintiff has

severe impairments, but none of which meet or medically equal one of the impairments listed in

20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 14-15.) Ultimately, the ALJ concluded that

plaintiff retains the residual functional capacity (“RFC”) to perform light work as detailed in her

decision. See R. 17. Plaintiff presently contends that substantial evidence does not support the

ALJ’s decision. Specifically, plaintiff argues that the ALJ improperly evaluated the medical

evidence, specifically the opinions of Adam Rom, M.D., a treating physician, and Erin Volpe,

Ph.D., a State agency psychological consultant. (Pl.’s Br. at 4-20.) Defendant counters that the

ALJ complied with Social Security regulations and relevant case law in her evaluation of the

opinion evidence. (Def.’s Br. at 4-11.)

Pursuant to the Commissioner’s regulations, RFC refers to the most a claimant

can do despite her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). The RFC assessment must

be based upon all relevant evidence, including medical records, medical source opinions, and a

claimant’s description of her own symptoms. The final responsibility for determining a

claimant’s RFC is reserved exclusively for the Commissioner, who will not give any special

significance to the source of another opinion on this issue. 20 C.F.R. §§ 404.1527(d),

416.927(d).6

In reaching the conclusion that plaintiff retains the RFC to perform a limited

range of light work, the ALJ offered a comprehensive assessment of the evidence of record. See

R. 17-24. First, the ALJ considered plaintiff’s testimony at the administrative hearing and

summarized the medical record evidence in detail. (R. 17-21.) In addition, the ALJ analyzed

plaintiff’s claims regarding the intensity, persistence and limiting effects of her symptoms in

light of the record evidence. (R. 21-23.) The ALJ also considered and analyzed the opinion

evidence. (R. 23-24.) Ultimately, the ALJ attributed “partial weight” to the opinions of Drs.

Volpe and Rom, and attributed “great weight” to the opinions of Pramod Digamber, M.D., an

internal medicine consultative examiner, and Erin Urbanowicz, Psy.D., a State agency reviewer.

See R. 23.7

6 The court notes that 20 C.F.R. §§ 404.1527 and 416.927, rather than 20 C.F.R. §§

404.1520c and 416.920c, apply because plaintiff’s claims were filed before March 27, 2017.

7 On September 22, 2015, Dr. Digamber conducted an internal medicine examination of

plaintiff, documenting generally normal clinical findings. See R. 388-91. Dr. Digamber also

completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) in

which he opined that plaintiff was capable of medium work. See R. 392-97. In addition, Dr.

Urbanowicz’s opinion appears in the Disability Determination Explanation, documenting the

denial of plaintiff’s claims at the initial level. See R. 68-95. Therein, Dr. Urbanowicz reviewed

the medical evidence of record, including the report of the consulting examiner, Dr. Volpe, who

conducted a psychiatric evaluation of plaintiff. See R. 70. Dr. Urbanowicz considered plaintiff’s

affective disorders, anxiety-related disorders, personality disorders, and substance addiction

disorders, and their effect on plaintiff’s functional abilities. See R. 77-79. Dr. Urbanowicz

concluded that plaintiff is able to meet the basic mental demands of competitive work on a

sustained basis despite the limitations resulting from her impairments. (R. 79.) She pointed out

that she had considered Dr. Volpe’s report, but reasoned that Dr. Volpe’s opinion was

inconsistent with the evidence in the file. Dr. Urbanowicz stated, “[t]he examining source

statements in the report concerning the claimant’s abilities in the areas of making occupational

adjustments, making performance adjustments and making personal and social adjustments are

not consistent with all of the medical and non-medical evidence in the claims folder.” Id. Dr.

Urbanowicz cited as a basis for her findings that the consulting examiner appears to have “relied

heavily on the subjective report of symptoms and limitations provided by the claimant.

Plaintiff avers that the ALJ erred in attributing only “partial weight” to the

September 21, 2015, opinion of Dr. Volpe pertaining to plaintiff’s mental impairments. See Pl.’s

Br. at 6-20. Plaintiff also takes issue with the ALJ’s assessment of Dr. Rom’s March 11, 2016

opinions pertaining to plaintiff’s mental and physical limitations. See Pl.’s Br. at 5-6, 7-20.

According to plaintiff, these opinions support her claims for benefits and establish far greater

limitations than found by the ALJ, and the ALJ erred in failing to attribute greater weight to the

opinions. However, plaintiff’s argument does not find support in the Commissioner’s

regulations, Third Circuit case law, nor the record in this case.

Generally, the Commissioner’s regulations dictate that an ALJ must give medical

opinions the weight she deems appropriate based on factors such as whether the physician

examined or treated the claimant, whether the opinion is supported by medical signs and

laboratory findings, and whether the opinion is consistent with the record as a whole. See 20

C.F.R. §§ 404.1527, 416.927. With respect to treating physicians specifically, the regulations

provide that an ALJ shall give a treating physician’s opinion controlling weight when it is “well-

supported by medically acceptable clinical and laboratory diagnostic techniques” and it is not

“inconsistent with the other substantial evidence” in the record. 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2). The Third Circuit has noted that an ALJ shall “accord treating physicians’ reports

great weight, especially when their opinions reflect expert judgment based on a continuing

observation of the patient’s condition over a prolonged period of time.” Morales v. Apfel, 225

F.3d 310, 317 (3d Cir. 2000) (internal citations omitted). The court subsequently explained,

however, that “Morales v. Apfel requires that ‘the ALJ accord treating physicians’ reports great

However, the totality of evidence does not support the claimant’s subjective complaints.” Id. In

addition, Dr. Urbanowicz further noted that Dr. Volpe’s opinion “contrasts sharply with other

evidence in the record, which renders it less persuasive.” Id.

weight,’ but there is no requirement to accept those opinions if they are not supported by

sufficient evidence in the record.” Fullen v. Comm’r of Soc. Sec., 705 F. App’x 121, 125 (3d

Cir. 2017) (not precedential).8

The Commissioner’s regulations further direct that the ALJ must consider the

supportability of an opinion in deciding the weight to give that opinion. See 20 C.F.R. §§

404.1527(c)(3), 416.927(c)(3) (“The more a medical source presents relevant evidence to support

a medical opinion, particularly medical signs and laboratory findings, the more weight we will

give that medical opinion. The better an explanation a source provides for a medical opinion, the

more weight we will give that medical opinion.”). The Third Circuit recently reiterated the well-

established standards for weighing opinion evidence. The court stated:

An ALJ may “weigh the [conflicting] medical evidence and draw [her] own

inferences.” Brown v. Astrue, 649 F.3d 193, 196-97 (3d Cir. 2011) (quoting

Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986)).

Additionally, an ALJ may reject the opinion of a treating physician when it is

unsupported and inconsistent with the other evidence in the record. See Fargnoli

v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (quoting 20 C.F.R. §

404.1527(d)(2)).

Brunson v. Comm’r of Soc. Sec., 704 F. App’x 56, 59 (3d Cir. 2017) (not precedential). See also

Plummer, 186 F.3d at 429 (An ALJ “may afford a treating physician’s opinion more or less

weight depending upon the extent to which supporting explanations are provided.”).

Furthermore, in assessing the medical evidence, “[a]n ALJ may accept some portions of a

medical source’s opinion while rejecting other opinions from the same source.” Connors v.

8 If the opinion of a treating physician conflicts with that of a non-treating, non-examining

physician, the ALJ may choose whom to credit but cannot reject evidence for no reason or for

the wrong reason. Morales, 225 F.3d at 317 (citing Plummer, 186 F.3d at 429). That is, a

treating source’s opinion may be rejected “on the basis of contradictory medical evidence,”

Plummer, 186 F.3d at 429, or if it is unsupported by sufficient clinical data, Newhouse v.

Heckler, 753 F.2d 283, 286 (3d Cir. 1985). An ALJ may not reject a treating physician’s opinion

based upon his own credibility judgments, speculation, or lay opinion. Morales, 225 F.3d at 317.

Berryhill, 2017 WL 4400758, at *5 (E.D. Pa. Sept. 29, 2017). In the present case, the ALJ’s

analysis was congruent with these standards.

Here, the opinions of Drs. Volpe and Rom describe more severe functional

limitations than ultimately determined by the ALJ in the RFC assessment. See R. 377-86, 402-

06.9 However, the ALJ determined that these opinions were entitled to “partial weight” because

they were not supported by the evidence of record. Prior to discussing the opinion evidence, the

9 On September 21, 2015, Dr. Volpe conducted a psychiatric evaluation. (R. 378-86.) In

her opinion, Dr. Volpe recounted plaintiff’s mental health history as described by plaintiff and

conducted a mental status examination, finding plaintiff to be cooperative and to demonstrate an

adequate manner of relating. (R. 381.) In additional Dr. Volpe assessed plaintiff to be, inter alia,

well-groomed, with normal motor behavior and appropriate eye contact. Id. Plaintiff’s thought

processes were coherent and goal-directed. Id. She demonstrated an anxious affect and neutral

mood. Id. Plaintiff was oriented to person, place, and time, and her attention and concentration

were intact. Id. Dr. Volpe noted plaintiff’s recent and remote memory skills to be “[m]ildly

impaired, due to emotional distress, secondary to anxiety and pain.” Id. Plaintiff’s cognitive

functioning appeared to be below average; her insight was limited and judgment noted to be

poor. (R. 382.) Dr. Volpe also completed a Medical Source Statement of Ability to Do Work-

Related Activities (Mental) in which she opined that plaintiff was moderately limited in her

ability to make judgments on simple work-related decisions; understand and remember complex

instructions; carry out complex instructions; interact appropriately with the public; and interact

appropriately with co-workers. (R. 384-85.) She also found plaintiff to be markedly limited in

her ability to make judgments on complex work-related decisions; interact appropriately with

supervisors; and respond appropriately to usual work situations and to changes in a routine work

setting. Id.

In a Medical Source Statement of Ability to Do Work-Related Activities (Mental), dated

March 11, 2016, Dr. Rom opined that plaintiff was moderately limited in her ability to:

understand and remember short, simple instructions; carry out short, simple instructions; and

understand and remember detailed instructions; interact appropriately with the public; interact

appropriately with supervisors; and interact appropriately with co-workers. (R. 402-03.) He also

found plaintiff to be markedly limited in her ability to: carry out detailed instructions; make

judgments on simple work-related decisions; respond appropriately to work pressures in a usual

work setting; and respond appropriately to changes in a routine work setting. Id.

In a Medical Source Statement of Ability to Do Work-Related Activities (Physical),

dated March 11, 2016, Dr. Rom opined, inter alia, that plaintiff can sit and stand/walk for a total

of four hours in an eight-hour workday, and can occasionally lift/carry and push/pull less than

ten pounds. (R. 405-06.) Dr. Rom also imposed various postural and manipulative limitations

on plaintiff’s abilities, and opined that plaintiff would need unscheduled breaks and walking

breaks on an hourly basis. See R. 406.

ALJ presented a thorough analysis of the medical records which demonstrates that the evidence

does not support the extent of the functional limitations claimed by plaintiff and assessed by Drs.

Rom and Volpe. First, the ALJ considered the treatment records from December 2014 from

Eagleville Hospital where plaintiff presented for treatment of heroin and benzodiazepine

dependence along with a history of depression and anxiety. (R. 18.) The ALJ noted at

discharge, that plaintiff had made “good progress” and was believed to be capable of maintaining

her own well-being and sobriety through participation in lesser care. Id. The ALJ also

considered the primary care records from 2015 which demonstrate that plaintiff reported a

history of MS without treatment and chronic back pain. Id. The ALJ noted the generally normal

findings on clinical examination and that plaintiff was referred to a neurologist for treatment of

MS. Id.

The ALJ then considered the April 2015 neurology treatment records which again

revealed generally normal findings “including no acute distress, preserved memory, normal

attention span and concentration, appropriate mood and behavior, intact vision, normal motor

tone and strength, normal gait, intact reflexes, and slightly decreased sensation on the right.” (R.

18-19.) Plaintiff was diagnosed with relapsing remitting MS, prescribed medication, and

referred for an MRI of the brain. (R. 19.) The ALJ considered the MRI results and treatment

notes from a November follow-up appointment at which plaintiff “reported some excessive

fatigue, depression, and pain in her right thigh with normal findings on physical examination.”

Id. The neurologist noted that plaintiff was tolerating treatment and doing reasonably well with

regard to her MS. Id.

Additionally, the ALJ addressed the reports of the September 2015 psychological

consultative examination conducted by Dr. Volpe and the September 2015 internal medicine

consultative examination conducted by Dr. Digamber. Id. The ALJ also considered Dr. Rom’s

primary care treatment records from 2015 through 2017 which reflect that plaintiff presented for

regular visits and reported ongoing issues with chronic pain. Id. The ALJ stated:

The notes from March 2016 show that the claimant stopped taking her medication

and wanted to change neurologist. The notes also showed that her MS had been

in remission for as long as the doctor had been treating her. In June 2016, the

claimant presented with normal findings on clinical examination and requested

methadone for her pain. She was denied methadone but provided with Wellbutrin

for situational depression. In August 2016, she reported running out of

Gabapentin but also admitted using her boyfriend’s pain medication. The notes

also indicate that she reported unwillingness to attend behavioral health treatment

for her anxiety and other symptoms. It was noted that her MS was stable, though

she was due for additional follow up. During her 2017 visits, the claimant was

regularly continued on her stable medication regimen. (Exhibits 16F and 18F).

(R. 19-20.)10

The ALJ also took into account the 2016 treatment records of Temple Neurology,

which reflect normal findings upon examination. (R. 20.) Edward Gettings, D.O., reviewed an

MRI of plaintiff’s brain and diagnosed plaintiff “with relapsing remitting MS without evidence

of progression. He noted that her condition had been stable on disease modifying therapy despite

poor compliance and recommended continued treatment and regular monitoring.” Id. A

December 2016 notation indicated that plaintiff “reported no symptoms consistent with clinical

relapse and Dr. Getting noted that she was tolerating her medication with minimal side effects,

though she was not completely compliant. It was again noted that her condition was stable

without evidence of progression despite ongoing issues of medication compliance.” Id.

With respect to the recent mental health treatment records, the ALJ summarized

the June 2017 initial evaluation conducted by NHS Human Services, and a July 2017 psychiatric

10 The ALJ also summarized the March 2016 medical source statements completed by Dr.

Rom. (R. 20.)

evaluation. (R. 20-21.) Subsequent treatment records document that plaintiff presented for

regular medication management sessions and that plaintiff reported some ongoing bouts of

depression despite taking medication. (R. 21.) The ALJ noted that plaintiff “displayed stable

and minimal findings on mental status examinations and it was regularly noted that her overall

condition remained stable.” Id. A September 2017 treatment note indicated, inter alia, that

plaintiff presented for regular medication, individual and group therapy, and demonstrated

progress with treatment. Id. The most recent treatment note, dated October 2017, reflected that

plaintiff “reported feeling restless but also stated that her medication was helping with her mood.

She denied any side effects from medication and noted that her methadone maintenance also

helps to control her chronic pain issues.” Id. Plaintiff’s overall condition was noted to be “stable

with treatment.” Id.

Based on the foregoing, the ALJ determined that plaintiff’s medically

determinable impairments could reasonably be expected to cause the alleged symptoms, but that

plaintiff’s statements concerning the intensity, persistence, and limiting effects of these

symptoms are not entirely consistent with the medical evidence. Id. In support of this

conclusion, the ALJ then compared and contrasted plaintiff’s claims with the evidence of record,

including specific citations to the record evidence. See R. 22-23. The ALJ explained that her

analysis was consistent with the Commissioner’s regulations and rulings, and reasoned in great

detail as follows:

In terms of her daily activities, she testified that she lives with her fiancé and five-

year-old daughter and does not do much housework due to fatigue. However, she

also reported that she drives, uses public transportation, attends daily treatment,

picks her daughter up from school, occasionally cooks, reads, knits, and spends

time with her daughter including helping with her homework, coloring, and going

to the park. In her Function Report, she also indicated that she does not cook or

clean, but does attend to her personal care, use public transportation, shop,

manage her finances, read, watch television, spend time with others, go out to

dinner, and attend regular treatment. (Exhibit 4E). Finally, during the

consultative examinations, she reported that she gets help with cooking, cleaning,

and shopping but that she is able to attend to her personal care independently,

drive, use public transportation, attend treatment, and spend time reading and

watching television. (Exhibits 7F and 8F). Given these admissions regarding her

ongoing high level of regular activities and interactions, despite any symptoms, a

more restrictive functional assessment is not warranted at any time relevant to this

decision.

In terms of her alleged symptoms, the claimant testified that she is unable to work

due to shooting pain in her legs and fatigue that prevents her from standing or

walking for long periods and horrible brain fog. She also reported a history of

substance abuse and mental health symptoms related to depression and anxiety.

However, during the consultative examinations, she displayed minimal positive

findings on clinical examinations. Those findings included no acute distress,

normal gait and station, full squat, no difficulty rising from a chair, normal skin

and visual acuity, negative straight leg raises, no evidence of joint disformity,

stable and non-tender joints, intact reflexes, no sensory deficits, intact strength, no

muscle atrophy, and intact dexterity and grip strength. In terms of her mental

presentation, she displayed cooperative presentation, adequate manner of relating,

normal motor behavior, appropriate eye contact, adequate speech, cohere[nt] and

goal directed thought processes, anxious affect, neutral mood, full orientation,

limited insight, poor judgment, mildly impaired memory skills, and intact

attention and concentration. (Exhibits 7F and 8F). These findings, considered in

conjunction with the claimant’s ongoing high level of regular activities and

interactions, as discussed in detail above, indicate that while she may continue to

experience some physical and mental symptoms, those symptoms have not

consistently risen to the level of severity required to justify a finding of disability

at any time relevant to this decision.

In terms of her treatment and medication, the records indicate that the claimant

receives daily methadone maintenance related to her history of substance abuse.

She also reported that she attends regular therapy sessions and takes medication to

treat her physical and mental symptoms. She stated that the medication helps

with her physical issues and depression with no negative side effects. The mental

health treatment records also indicate that she reported some improvement in her

mood and other symptoms with medication with no negative side effects. She

reported that her methadone maintenance also helps with her pain issues and her

treating nurse practitioner noted that her overall condition was stable. (Exhibit

23F). The primary care and neurology records also generally indicate that her

conditions, including her MS, anxiety, and depression were stable and doing well

with no indication of progression of her MS through regular medication and care

despite some repeated issues of compliance with her MS medication. (Exhibits

6F, 14F, 16F, and 18F). The most recent primary care records also indicate that

she presented with normal clinical findings and reported no active symptoms.

(Exhibit 22F). Overall, the records indicate that the claimant has achieved some

level of improvement and stability in her physical and mental symptoms with no

progression of her MS through routine and conservative treatment including

medication, therapy, and methadone maintenance.

Id. Thus, the ALJ clearly demonstrated that, although the medical records document plaintiff’s

treatment history, they do not support plaintiff’s claims of functional limitations.

The ALJ then addressed the opinion evidence and expressly discussed the

opinions of Drs. Volpe, Digamber, Rom, and Urbanowicz. (R. 23.) With respect to the opinion

of Dr. Volpe, the ALJ indicated that the opinion was afforded partial weight. The ALJ reasoned

that while it “was the result of an in person interview and examination . . . the marked limitations

assessed seem to rely largely on the claimant’s subjective complaints rather than the generally

normal findings noted during the clinical examination.” Id. The ALJ further reasoned that Dr.

Volpe’s opinion was inconsistent with “the treatment records documenting generally minimal

symptom complaints, generally normal findings on clinical examinations, and noted symptoms

improvement with treatment.” See id.

With respect to the opinions of Dr. Rom, the ALJ similarly reasoned that the

opinions were afforded partial weight because they were not supported by the record. The ALJ

stated:

Partial weight is given to the assessments from Dr. Rom, at Exhibits 9F and 10F,

as he is the claimant’s treating primary care physician. However, he is not her

treating psychiatrist or neurologist. In addition, the physical limitations that he

assessed are inconsistent with the contemporaneous treatment records

documenting generally normal clinical findings and minimal symptom

complaints. He also relied at least in part on her lack of work history in assessing

her ability to work; however, this is inappropriate for a medical assessment and

should not be considered in determining her physical and mental abilities.

(R. 23.) 11

11 Indeed, Dr. Rom’s proffered explanation for the mental functional limitations is “[history

of] MS and little work history.” See R. 403. Similarly, in response to a question asking Dr. Rom

Contrary to plaintiff’s assertions, the ALJ’s comprehensive written decision

explains how the opinions of Drs. Volpe and Rom do not find support in the record. That is, the

ALJ’s written decision sets forth in great detail treatment records that document generally

minimal symptom complaints, generally normal findings on clinical examinations, and symptom

improvement with treatment. See R. 17-24. The decision demonstrates that the ALJ considered

plaintiff’s testimony at the administrative hearing, the medical record evidence, and the opinion

evidence. Id. In addition, the ALJ compared and contrasted plaintiff’s claims regarding the

intensity, persistence and limiting effects of her symptoms in light of the record evidence and

opinion evidence. (R. 21-23.) Ultimately, the ALJ attributed “partial weight” to the opinions of

Drs. Volpe and Rom because they were not supported by the evidence of record, and attributed

“great weight” to the opinions of the internal medicine consultative examiner and the State

agency medical reviewer. See R. 23. The ALJ’s thorough written decision demonstrates that the

ALJ acted in accordance with the precepts of the Commissioner’s regulations and Third Circuit

case law when she explained her reasons for weighing the evidence in the manner she did.12

to describe the objective findings, clinical observations, and symptomology supporting his

physical functional limitations, Dr. Rom answered, “patient has not worked for any extended

period of time for years.” See R. 406.

12 The ALJ also attributed partial weight to Dr. Rom’s statement that plaintiff was disabled

for one year due to MS. (R. 23.) The ALJ acknowledged that Dr. Rom is a treating source, but

also explained that the statement “is not given great or significant weight as it represents only a

broad statement with no explanation or supporting clinical evidence.” Id. The court notes that

the Commissioner’s regulations provide that “a statement by a medical source that you are

disabled or unable to work does not mean that we will determine that you are disabled.” 20

C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). “[A] statement by a plaintiff’s treating physician

supporting an assertion that [he] is ‘disabled’ or ‘unable to work’ is not dispositive of the issue.”

Adorno v. Shalala, 40 F.3d 43, 47-48 (3d Cir. 1994) (citing Wright v. Sullivan, 900 F.2d 675,

683 (3d Cir. 1990)). “The law is clear . . . that the opinion of a treating physician does not bind

the ALJ on the issue of functional capacity.” Brown, 649 F.3d at 196 n.2. See also Breen v.

Comm’r of Soc. Sec., 504 F. App’x 96, 99 n.3 (3d Cir. 2012) (not precedential) (“While treating

medical source opinions may be afforded controlling weight on issues such as the nature and

The court also is not persuaded by plaintiff’s argument that the ALJ improperly

relied upon lay opinion in formulating the RFC. The Commissioner’s regulations in effect at the

time of the ALJ’s decision clearly state that the responsibility for assessing a claimant’s RFC lies

with the ALJ. See 20 C.F.R. §§ 404.1546(c), 416.946(c) (“If your case is at the administrative

law judge hearing level . . . , the administrative law judge . . . is responsible for assessing your

residual functional capacity.”). Subsequent opinions in this Circuit reiterate that “[t]he ALJ --

not treating or examining physicians or State agency consultants -- must make the ultimate

disability and RFC determinations.” Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d

Cir. 2011) (citing 20 C.F.R. §§ 404.1527(e)(1), 404.1546(c)). See Titterington v. Barnhart, 174

F. App’x 6, 11 (3d Cir. 2006) (not precedential) (“There is no legal requirement that a physician

have made the particular findings that an ALJ adopts in the course of determining an RFC.

Surveying the medical evidence to craft an RFC is part of the ALJ’s duties.”); Mays v. Barnhart,

78 F. App’x 808, 813 (3d Cir. 2003) (not precedential) (“[T]he ALJ is responsible for making a

residual functional capacity determination based on the medical evidence, and he is not required

to seek a separate expert medical opinion.”) (citing 20 C.F.R. §§ 404.1527(e), 404.1546(c)). See

also Lewis v. Berryhill, 2018 WL 3447177, at *4-5 (E.D. Pa. July 17, 2018) (“The ALJ was ‘not

bound to accept the opinion or theory of any medical expert,’ but rather could ‘weigh the

medical evidence and draw his own inferences.’”) (citing Kertesz v. Crescent Hills Coal Co., 788

severity of a claimant’s impairment, 20 C.F.R. § 404.1527(c)(2), opinions on issues reserved to

the Commissioner – i.e., a claimant’s residual functional capacity – are not entitled to ‘any

special significance’ regardless of the source of the opinion, id. (d)(2)-(3).”).

Additionally, the court notes that Dr. Rom’s opinions consisted of check-the-box and fill-

in-the-blank forms and offer weak evidence in support of plaintiff’s claims. See R. 402-06; see

also Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (“[F]orm reports in which a

physician’s obligation is only to check a box or fill in a blank are weak evidence at best.”); Byrd

v. Berryhill, 2018 WL 2009535, at *3 (E.D. Pa. Apr. 27, 2018) (same).

F.2d 158, 163 (3d Cir. 1986); Chandler, 667 F.3d at 361-62); Cleinow v. Berryhill, 311 F. Supp.

3d 683, 686 (E.D. Pa. 2018) (holding that an “ALJ is not restricted to adopting the conclusions of

a medical opinion in making an RFC determination” where “the ALJ properly considered

Plaintiff's medical records as a whole in determining Plaintiff’s RFC, and was not required to

rely on a specific medical opinion”); Northington v. Berryhill, 2018 WL 2159923, at *1 n.l (E.D.

Pa. May 10, 2018) (finding that the ALJ did not err by “draw[ing] a medical conclusion in lieu of

a doctor; she simply used medical evidence to craft an RFC”).

In any event, the opinions of Dr. Digamber and Dr. Urbanowicz support the

ALJ’s RFC determination. Although Dr. Urbanowicz did not examine plaintiff, the ALJ was

entitled to rely upon this opinion in formulating the RFC. “State agent opinions merit significant

consideration.” Chandler, 667 F.3d at 361. See SSR 96-6p, 1996 WL 374180, at *2 (S.S.A. July

2, 1996) (“Because State agency medical and psychological consultants . . . are experts in the

Social Security disability programs, . . . [Social Security regulations require ALJs] . . . to

consider their findings of fact about the nature and severity of an individual’s impairment(s) . . . .

[ALJs] are not bound by findings made by State agency or other program physicians and

psychologists, but they may not ignore these opinions and must explain the weight given to the

opinions in their decisions.”); see also Brunson, 704 F. App’x at 60 (“Contrary to [plaintiff’s]

assertions, Dr. Wander - as a state agency medical consultant - was per se qualified to issue a

medical opinion for the ALJ’s consideration.”). Indeed, “an ALJ can choose to accept the

findings of evaluating, non-examining state agency physicians over the opinions of treating

physicians where the treating physicians’ opinions were ‘conclusory and unsupported by the

medical evidence’ and contradictory to other medical evidence of record.” Myers v. Barnhart,

57 F. App’x 990, 996 (3d Cir. 2003) (not precedential) (citing Jones v. Sullivan, 954 F.2d 125,

129 (3d Cir. 1991)). Moreover, the opinion of Dr. Digamber, the internal medicine consultative

examiner, who determined that plaintiff is capable of medium work, also lends support to the

ALJ’s RFC determination with respect to plaintiff’s physical impairments. Thus, the ALJ’s

analysis clearly demonstrates that her RFC finding was not based on impermissible speculation,

but rather, her assessment of the medical records, including all of the opinion evidence. The ALJ

did not err in weighing the opinions in the manner she did. See Armbruster v. Colvin, 2016 WL

5930913, at *7 (E.D. Pa. Oct. 12, 2016) (finding no error in the ALJ’s attribution of various

amounts of weight to the opinion evidence). See also Lewis, 2018 WL 3447177, at *4-5

(same).13

The court is mindful that this court’s review is limited to determining whether the

Commissioner’s decision is “supported by substantial evidence.” 42 U.S.C. § 405(g); Adorno v.

Shalala, 40 F.3d 43, 46 (3d Cir. 1994). This court may not undertake a de novo review of the

Commissioner’s decision or re-weigh the evidence of record. Monsour Med. Ctr., 806 F.2d at

1190-91. See Chandler, 667 F.3d at 359 (“Courts are not permitted to re-weigh the evidence or

impose their own factual determinations.”); Burns, 312 F.3d at 118 (“We also have made clear

that we are not permitted to weigh the evidence or substitute our own conclusions for that of the

fact-finder.”).

Plaintiff essentially seeks to have this court re-weigh the evidence and reach a

different conclusion. However, a reviewing court may not set the Commissioner’s decision aside

13 To the extent plaintiff asserts the ALJ erred by failing to recontact plaintiff's medical

sources, the court is likewise not persuaded. The regulations provide that an ALJ may recontact

a medical source for clarification, if such clarification is needed to make the disability

determination. See 20 C.F.R. §§ 404.1520b(b), 416.920b(b). There is nothing in the record here

to indicate the ALJ was unable to make the disability determination based on the evidence in the

record. See id.

if it is supported by substantial evidence, even if the court would have decided the factual inquiry

differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). In reaching her determination

concerning the weight to give the opinions of Drs. Rom and Volpe, the ALJ acted in accordance

with the Commissioner’s regulations and Third Circuit case law. Substantial evidence supports

the ALJ’s analysis of the opinion evidence. See Biestek, 139 S. Ct. at 1154 (Substantial

evidence “means -- and means only – ‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’”) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). Remand is not warranted.

V. CONCLUSION

After a careful and thorough review of all of the evidence in the record, and for

the reasons set forth above, this court finds that the ALJ’s findings are supported by substantial

evidence. Accordingly, plaintiff’s Request for Review will be denied.

An appropriate Order accompanies this opinion.

BY THE COURT:

__/s/ Thomas J. Rueter_______________

THOMAS J. RUETER

United States Magistrate Judge