ROMAN CARABALLO v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARIA IRENE ROMAN CARABALLO, : CIVIL ACTION

Plaintiff, :

:

vs. : NO. 21-cv-1810

:

KILOLO KIJAKAZI,1 :

Acting Commissioner of Social Security, :

Defendant. :

MEMORANDUM OPINION

LYNNE A. SITARSKI

UNITED STATES MAGISTRATE JUDGE October 27, 2022

Plaintiff Maria Irene Roman Caraballo brought this action seeking review of the Acting

Commissioner of Social Security Administration’s decision denying her claim for Social

Security Disability Insurance (SSDI) benefits and Supplemental Security Income (SSI) benefits

under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401–433, 1381–1383f. This

matter is before me for disposition upon consent of the parties. For the reasons set forth below,

Plaintiff’s Request for Review (ECF No. 10) is DENIED.

I. PROCEDURAL HISTORY

Plaintiff protectively filed for SSDI and SSI, alleging disability since November 20,

2015, due to depression, anger, rheumatoid arthritis (in knees, ankles and feet), thyroid problems,

back problems, hypothyroidism, high blood pressure, and anxiety. (R. 221). Plaintiff’s

applications were denied at the initial level, and Plaintiff requested a hearing before an

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi has been

substituted for Andrew Saul as the Defendant in this case.

Administrative Law Judge (ALJ). (R. 107-08, 131-33). Plaintiff, represented by counsel, and a

vocational expert testified at the October 24, 2018 administrative hearing. (R. 39-74). At the

hearing, Plaintiff amended her alleged disability onset date to September 6, 2017, her fiftieth

birthday.2 (R. 45). On January 8, 2019, the ALJ issued a decision unfavorable to Plaintiff. (R.

17-38). Plaintiff appealed the ALJ’s decision, and the Appeals Council denied Plaintiff’s request

for review on April 13, 2020, thus making the ALJ’s decision the final decision of the Acting

Commissioner for purposes of judicial review. (R. 1-6).

On April 19, 2021, Plaintiff filed a complaint in the United States District Court for the

Eastern District of Pennsylvania. (Compl., ECF No. 1). On April 20, 2021, Plaintiff consented

to my jurisdiction pursuant to 28 U.S.C. § 636(C). (Consent Order, ECF No. 4). On November

11, 2021, Plaintiff filed a Brief and Statement of Issues in Support of Request for Review. (Pl.’s

Br., ECF No. 10). On December 13, 2021, the Acting Commissioner filed a Response. (Resp.,

ECF No. 11).

II. FACTUAL BACKGROUND

The Court has considered the administrative record in its entirety and summarizes here

the evidence relevant to the instant request for review.

Plaintiff was born on September 6, 1967, and was 50 years old on the alleged disability

onset date. (R. 75). She obtained a GED. (R. 222). Plaintiff previously worked as a baker, a

cashier in a grocery store, a cashier and coffee maker in a donut shop, and a cook in a fast food

restaurant. (R. 223).

2 In making the amendment, Plaintiff’s counsel inadvertently referenced her birthday as

September 5. (R. 45; see also R. 75).

A. Medical Evidence3

Plaintiff presented to rheumatologist Susan Lee, M.D., of Coordinated Health in

Easton, Pennsylvania, on February 10, 2017, with complaints of lower back pain and

bilateral knee and foot pain. (R. 407). She described her pain as three on a one-to-ten scale

(left knee), achy, dull, intermittent and stable, although she also stated that “she feels she is

doing worse.” (R. 409). Plaintiff’s height was five feet seven and one-half inches and her

weight was 310 pounds. (R. 407). Dr. Lee diagnosed Plaintiff with lumbago and chronic

joint pain primarily in her knees and feet, gave her steroid injections in her knees, prescribed

Tizanidine, and recommended weight loss. (R. 410-11). X-rays of Plaintiff’s feet showed

heel spurs, an insertional Achilles enthesophyte, joint space narrowing in the knees with

arthrosis and generally mild multilevel degenerative disc disease. (R. 420-22). At

subsequent monthly visits in March and April 2017, Plaintiff further complained of left

thigh numbness and tingling suspected to be radiating from her lower back; Dr. Lee

recommended Ibuprofen. (R. 401, 405). However, at all three visits, Plaintiff was noted to

have a normal gait and range of motion with full strength in her arms and legs. (R. 399-400,

404-05, 409).

On March 1, 2017, Plaintiff underwent a sleep study at Easton Hospital. (R. 456-57).

At a follow up visit with Gerald Lowman, M.D., he diagnosed Plaintiff with obstructive

sleep apnea syndrome and indicated that she would likely benefit from a CPAP, which he

3 Plaintiff’s Request for Review does not concern the ALJ’s findings regarding her high

blood pressure, thyroid problems, sleep apnea or mental health problems. Accordingly, the

Court will not address these conditions at this time, except as they relate to Plaintiff’s

impairments at issue.

ordered for her. (R. 454). Upon examination, Plaintiff was noted to have normal

psychiatric results, gait and station. (Id.).

On May 8, 2017, State agency medical consultant Angela Walker, M.D., opined that

Plaintiff could frequently lift and carry 10 pounds and occasionally lift and carry 20 pounds.

She found that Plaintiff could not climb ladders, ropes or scaffolds but that she could

occasionally balance and frequently engage in other postural maneuvers. (R. 83). She

further determined that Plaintiff must avoid concentrated exposure to extreme temperatures,

wetness, humidity, vibration, fumes, odors, dusts, gases, poor ventilation, and workplace

hazards. (R. 84). She also concluded that Plaintiff could stand and walk or sit for six hours

in a workday. (R. 83).

A June 27, 2017 x-ray of the lumbar spine showed mild degenerative disc change at

the L1-L2 disc with marginal spurs throughout the lumbar spine, but without compression

deformity, spondylolysis or acute fractures. (R. 786). An August 14, 2017 x-ray of the left

knee showed mild osteoarthritis of the lateral primary joint with mild to moderate

osteoarthritis in the femoral patellar joint. (R. 785).

On March 5, 2018, Plaintiff presented to the Temple University Hospital Emergency

Department in Philadelphia, Pennsylvania, with pain and swelling in her left leg and was

diagnosed with cellulitis, a skin infection. (R. 712). She reported some pain with

ambulation but had a normal gait and range of motion. (R. 715-16). Plaintiff was

prescribed doxycycline. (R. 716).

On April 4, 2018, Plaintiff presented to Emi Okamoto, M.D., at Delaware Valley

Community Health for abdominal pain and a medication refill, with additional complaints of

a skin infection on her left leg, bloating, and ear, leg, and back pain. (R. 771). Dr. Okamoto

referred Plaintiff back to her rheumatologist for a refill of her methotrexate pending another

appointment with the rheumatologist. (R. 774). Plaintiff returned to Dr. Okamoto on April

25, 2018 visit for hypertension and epigastric, on May 3, 2018 for a cold, and again on June

14, 2018, for abdominal pain. (R. 753, 759, 766). Musculoskeletal examination results

were normal at all four visits. (R. 755, 762, 766, 769, 773).

On May 15, 2018, Plaintiff presented to Chantel Park, M.D., a rheumatologist with

Jefferson Health in Philadelphia. (R. 805). Plaintiff reported stiffness in her lower back,

knees, ankles and feet lasting for 10 to 15 minutes in the morning, and feet and ankle

swelling. (Id.). Dr. Park observed that Plaintiff had class III obesity, and

electromyography confirmed left lumbar radiculopathy. (T. 505). A physical examination

revealed an antalgic gate and some joint tenderness, but Dr. Park noted that Plaintiff’s

rheumatoid arthritis was “well-controlled” overall with full range of motion. (R. 805,

811). Plaintiff reported “some relief” and “significant improvement” with prior use of

methotrexate and Euflexxa, respectively, and Dr. Park noted that the former would be

restarted pending laboratory results. (R. 805). Plaintiff returned to Dr. Park on June 19,

2018, and reported that she felt the same with weekly use of methotrexate since her last

visit, although she denied any swelling. (R. 844). She further reported difficulty sticking

to the diet recommended by her nutritionist and failure to wear a prescribed ankle brace.

(Id.). Her physical examination results were similar to those from the prior visit. (R. 846).

Dr. Park planned to increase her methotrexate dosage pending laboratory results. (R. 849).

At Plaintiff’s August 14, 2018 visit, it was noted that she had not yet scheduled a prior

referral for epidural injections. (R. 874). Her physical examination results again tracked

those from the prior visits. (R. 876). Dr. Park referred Plaintiff to aquatherapy and

ordered a medial unloader brace for her knee. (R. 880).

Plaintiff presented to Einstein Orthopedics on May 30, 2018, with worsening bilateral

foot and ankle pain, especially on the left side, described as aching, painful to the touch, and

severe but fluctuating. (R. 787). Gait disturbance and swelling were also noted. (R. 788). X-

rays showed bilateral bunions with minimal osteophyte formation. (Id.). She was diagnosed

with ankle weakness, bilateral pes planus and obesity and prescribed an ankle brace, and

orthotics were discussed. (R. 789). Physical therapy, which was noted to have helped

previously, was also recommended. (Id.). It was further noted that Dr. Okamoto had diagnosed

her with flat feet deformity. (Id.). Plaintiff returned on July 9, 2018, for lower back pain, at

which time an x-ray showed degenerative joint disease. (R. 791). Plaintiff indicated she was

having no leg pain at that time, and Shelley Blakely, PA-C, noted that she had full strength in

her lower extremities. (R. 790). Ms. Blakely referred Plaintiff for an MRI, counseled her on

weight loss and indicated that she should return on an as-needed basis. (Id.).

Plaintiff met with registered dietitian Eric Galuchie of Jefferson Health on June 6,

2018. (R. 944). At the visit, Plaintiff weighed 315 pounds and had a body mass index of

47.9. (Id.). She reported having previously lost 20 pounds but that she regained it because

she “ha[d] gotten into her old habits of sitting around the house and not getting up to walk.”

(Id.). Plaintiff stated that she was “very interested” in walking more again and that pain

was her primary motivation for losing weight. (R. 944-45).

Plaintiff underwent a physical therapy evaluation and began physical therapy at

Jefferson Health on June 4, 2018. (R. 509). She reported bilateral knee and ankle pain and

lower back pain, rated at five out of 10 at the time and at its most severe, but which was

relieved by lying on her back side. (Id.). She told the physical therapist, Joseph A.

McCoy, that she could sit or stand for only 30 minutes due to back pain, that she could

walk two to three city blocks, that she must take one step at a time and use a railing while

climbing stairs, that her pain awakened her three to four times per night, and that she had

pain while carrying groceries and laundry. (R. 510). Mr. McCoy noted an altered gait and

decreased strength, range of motion, endurance, mobility and balance. (R. 512). He also

observed “lumbar derangement with flexion bias with gross lower extremity sensory

changes not a particular dermatome underlying hit/pelvic weakness leading to abnormal

joint loading responses with special testing consistent for bilateral hip osteoarthritis.” (Id.).

On the Oswestry Low Back test, Plaintiff scored 76%, qualifying her as

“crippled . . . . Back pain impinges on all aspects of the patient’s life.” (R. 511, 514-15).

At a June 13, 2018 session, she reported increased pain due to having done “a bunch of

housework.” (R. 574). Plaintiff attended a total of eight physical therapy sessions over the

next six weeks. (R. 673). Upon discharge, she reported unchanged lower back pain,

although her Oswestry score improved 28 percent, which was “indic[a]tive of increase[d]

function with decrease[d] [lower back pain . . . .” (R. 673). Plaintiff was counseled on the

importance of continuing her home exercise program and her recumbent cycling at the

YMCA. (Id.). She was also advised to follow up with her gastroenterologist regarding

possible bariatric surgery. (Id.).

On August 1, 2018, Dr. Okamoto completed a Treating Source Statement – Physical

Conditions for Plaintiff. (R. 696-99). In the form, she noted that she had been treating

Plaintiff monthly since April 2018. (R. 696). Dr. Okamoto checked boxes indicating that

Plaintiff could maintain concentration for less than 30 minutes, would likely be off-task one-

quarter of the workday due to her symptoms, would likely miss four days of work per month

due to her impairments and treatment, could occasionally lift and carry less than 10 pounds,

could rarely lift and carry 10 to 20 pounds, could sit for less than one hour in a workday, and

could stand and walk for four hours in a workday. (R. 695-97). Dr. Okamoto noted that

Plaintiff would have to lie down twice per workday for 20 to 30 minutes but that she does

not require a cane to ambulate. (R. 697). In addition, Dr. Okamoto checked boxes

indicating that Plaintiff could occasionally reach overhead with her right arm and hand, but

frequently do so with her left arm and hand, and that she could frequently reach in all

directions, handle, finger, feel, push and pull, and operate foot controls bilaterally. (R. 698).

Moreover, Dr. Okamoto indicated that Plaintiff could never climb ladders or scaffolds or

tolerate exposure to unprotected heights and moving mechanical parts; rarely climb stairs

and ramps, balance, stoop, kneel, crouch, and crawl; occasionally operate a vehicle and

tolerate exposure to humidity and wetness, extreme temperatures, vibrations, and dusts,

odors, fumes, and pulmonary irritants; and continuously rotate her head and neck. (R. 699).

On August 9, 2018, cardiologist J. David Ogilby, M.D., of Jefferson Health

evaluated Plaintiff for preoperative clearance for bariatric surgery. (R. 985). She weighed

306 pounds, which translated to a body mass index of 46.5. (Id.). Bilateral knee and foot

pain were noted. (R. 987). Pre-surgical testing revealed anterior infarct, inferior ischemia,

cardiomyopathy with systolic heart failure and a dilated left ventricle. (R. 989). On August

30, 2018, she complained to cardiologist Mark J. Decaro, M.D., of Jefferson Health of

shortness of breath with exertion and sharp chest pains upon both rest and exertion. (Id.).

Plaintiff underwent a cardiac catherization that showed nonobstructive coronary artery

disease. (R. 990). Continued shortness of breath and one recent episode of sharp chest pain

was noted at a September 12, 2018 visit with Dr. Decaro. (Id.). Dr. Decaro observed that

Plaintiff was not experiencing any lower extremity swelling at the visit, although at the

subsequent October 3, 2018 visit Plaintiff reported ankle edema, which was worst at the end

of the day. (R. 992).

B. Non-Medical Evidence

On April 8, 2007, Plaintiff completed an Adult Function Report. (R. 243-53). She

indicated that she could not walk or sit for more than 30 to 40 minutes or stand or bend for “long

periods,” that when reaching or stretching her back hurts due to a pulled muscle, and that back

pain and thigh numbness and cramps interfere with her sleep. (R. 243-44, 248). She further

stated that all her joints are stiff and painful. (R. 243). She explained that she generally spends

all day watching television, although she sometimes also reads, prepares simple meals, cleans,

washes dishes, and goes shopping with her daughter for three to four hours. (R. 244, 246).

Plaintiff asserted that she can no longer play with, run after or lift up her 30-pound grandchild or

grandchildren. (R. 244, 248). She also claimed to have difficulty engaging in personal care due

to arm and hand cramping and difficulty lifting her legs. (Id.). She reported being able to walk,

ride in a car, use public transportation and go out alone, although she does not “like to or want

to.” (R. 246). She stated that she goes unaccompanied to doctor’s appointments “very often”

and to church three times per week for two-and-a-half to four hours at a time. (R. 247). Plaintiff

checked boxes indicating difficulties with lifting, squatting, bending, standing, reaching,

walking, sitting, kneeling, stair climbing, completing tasks, concentrating and using her hands.

(R. 248). She noted that a physician had suggested using a cane but that she did not do so. (R.

249). She asserted that she can pay attention for one to two hours. (R. 248).

In an attached Supplemental Function Questionnaire, Plaintiff explained that she began

having pain primarily in her knees, legs, feet and sometimes back, spreading to her upper thighs,

hands, and fingers, in January 2008 due to repeatedly slipping and falling on wet and icy floors

at her job. (R. 251). She described the pain as “excruciating” during the winter, “extreme” but

fluctuating in intensity, lasting for two to three hours for three to four times per day, and brought

on by bending, standing, walking, squatting, sitting, pulling and cold temperatures. (Id.). She

described taking hot showers, using Bengay or an Icy Hot pad, and attending physical therapy,

but not using any braces, to alleviate the pain. Lastly, she reported that her medications make

her drowsy. (Id.).

On approximately the same date, Plaintiff’s daughter, Ivana Santiago, completed a Third

Party Adult Function Report. (R. 304-312). Ms. Santiago claimed that Plaintiff cannot stand, sit

or bend down without pain and that she has consistent numbness, cramping, and stiffness

throughout her body, as well as consistent pain in her legs, back, knees, arms, and feet. (R. 305,

312). She asserted that Plaintiff mostly watches television all day and that her impairments

affect her ability to engage in personal care. (R. 306). However, she stated that Plaintiff also

reads the Bible three times per day, washes dishes and does laundry, shops online, sometimes

shops in stores for 30 minutes and cooks, attends church thrice weekly for up to four hours each

time, and can use public transportation alone to go to doctor appointments. (R. 307-09). Ms.

Santiago checked boxes indicating that Plaintiff has difficulties with lifting more than 30 pounds,

squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, remembering,

completing tasks, concentrating and using her hands. (R. 310). She explained that Plaintiff can

walk for 15 to 20 minutes before requiring a break and that she can pay attention for one hour.

(Id.).

At the October 24, 2018 administrative hearing, Plaintiff testified that she is five feet

eight inches tall and weighs 306 pounds. (R. 47). She denied having a driver’s license and

instead uses public transportation, Uber and Lyft. (R. 48). She stated that she last worked at a

Dunkin’ Donuts in 2017 but quit after a dispute with a customer and because it was too stressful.

(R. 50-51). She also testified to being in pain while working and frequently tripping. (R. 50-52).

She asserted that she has pain, numbness, tingling and swelling in her feet, and especially her left

ankle, stemming from flat feet. (R. 51). Plaintiff indicated that she has “snapping” in and

trouble bending her knees, especially the left one, and that for the last month she had been

wearing a knee brace on her left knee to stand or walk for a significant period. (R. 53). She

complained of sharp, pinching pain in her lower back, especially on the right side, if she stands

for more than 15 to 20 minutes. (R. 54). Later, she testified that she is limited to standing for 30

to 40 minutes and walking one and a half blocks, primarily due to the problems with her knees

and feet. (R. 55). She explained that she can hold her 20- to 22-pound granddaughter for 10 to

15 minutes, but it leaves her back “really hurting.” (Id.). However, she stated that she could

comfortably lift up to 20 pounds. (Id.). Plaintiff claimed to have difficulty washing dishes,

sweeping the floor and shopping, although she also reported engaging in the latter activity with

her daughter for up to two hours. (R. 56). She testified that she goes up and down the stairs in

her home with difficulty but approximately five to seven times per day; however, she does not go

to the basement because the stairs are very narrow and there is no railing. (R. 58). Finally, she

stated that she tried physical therapy for “a short time,” as well as home exercises that she ceased

due to pain, but her physical condition worsened nonetheless. (R. 60).

III. ALJ’S DECISION

Following the administrative hearing, the ALJ issued a decision in which she made the

following findings:

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

through September 30, 2020.

2. The claimant has not engaged in substantial gainful activity since September 5,

2017, the amended alleged onset date.

3. The claimant has the following severe impairments: major depressive disorder,

post-traumatic stress disorder (PTSD), generalized anxiety disorder, obesity,

degenerative disc disease of the lumbar spine, flat feet, rheumatoid arthritis,

obstructive sleep apnea, hypertension, and cardiomyapthy.

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

meets or medically equals the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

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 C.F.R.

404.1567(b) and 416.967(b) except she is limited to standing/walking no more

than 4 hours in an 8-hour workday; to being able to shift positions from sitting to

standing at will; to being able to shift positions from sitting to standing at will; to

no more than occasional overhead reaching; to no climbing ladders, ropes or

scaffolds, kneeling, crawling, balancing, or walking on uneven surfaces, and only

occasionally performing all other postural maneuvers; to no exposure to hazards

such as unprotected heights or dangerous machinery; and to no more than

occasional exposure to extreme temperatures or vibration. She can perform

routine, repetitive tasks and make only simple work-related decisions based on

established standards and instructions. She is able to work in proximity with

others, but with no more than occasional tandem or teamwork with coworkers on

the same tasks and she is limited to occupations where there are few and

infrequent changes in the work setting or the tasks performed. (R. 25).

6. The claimant is unable to perform any past relevant work.

7. The claimant was born on September 6, 1967 and was 48 years old, which is

defined as an individual closely approaching advanced age, on the alleged

disability onset date.

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

English.

9. Transferability of job skills is not an issue in this case because the claimant’s past

relevant work is unskilled.

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.

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

Act, from November 20, 2015, through the date of this decision.

(R. 20-33). Accordingly, the ALJ found Plaintiff was not disabled. (R. 33).

IV. LEGAL STANDARD

To be eligible for benefits under the Social Security Act, a claimant must demonstrate to

the Commissioner that she cannot engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. §

1382c(a)(3)(A). A five-step sequential analysis is used to evaluate a disability claim:

First, the Commissioner considers whether the claimant is currently

engaged in substantial gainful activity. If she is not, then the

Commissioner considers in the second step whether the claimant has

a “severe impairment” that significantly limits her physical or

mental ability to perform basic work activities. If the claimant

suffers a severe impairment, the third inquiry is whether, based on

the medical evidence, the impairment meets the criteria of the

impairment listed in the “listing of impairments,” . . . which result

in a presumption of disability, or whether the claimant retains the

capacity to work. If the impairment does not meet the criteria for a

listed impairment, then the Commissioner assesses in the fourth step

whether, despite the severe impairment, the claimant has the

residual functional capacity to perform her past work. If the

claimant cannot perform her past work, then the final step is to

determine whether there is other work in the national economy that

the claimant can perform.

Sykes v. Apfel, 228 F.3d 259, 262-63 (3d Cir. 2000); see also 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). The disability claimant bears the burden of establishing steps one through four.

If the claimant is determined to be unable to resume previous employment, the burden shifts to

the Commissioner at step five to establish that, given the claimant’s age, education, work

experience, and mental and physical limitations, he is able to perform substantial gainful

activities in jobs existing in the national economy. Poulos v. Comm’r. of Soc. Sec., 474 F.3d 88,

92 (3d Cir. 2007).

Judicial review of a final decision of the Commissioner is limited. A district court is

bound by the factual findings of the Commissioner if they are supported by substantial evidence

and decided according to correct legal standards. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.

1999). Substantial evidence is “more than a mere scintilla” and “such relevant evidence as a

reasonable mind might accept as adequate.” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 118

(3d Cir. 2000) (citations omitted). Even if the record could support a contrary conclusion, the

decision of the ALJ will not be overruled as long as there is substantial evidence to support it.

Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986). The court has plenary review of legal

issues. Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999).

V. DISCUSSION

In her request for review, Plaintiff raises a single claim: “The ALJ erred by failing to

evaluate the medical opinion evidence in accordance with the regulations, Agency policy, and

Third Circuit precedent.” (Pl.’s Br., ECF No. 10, at 2). Specifically, she asserts: “The ALJ did

not reasonably or logically reject Dr. Okamoto’s opinion to prefer the non-examining

consultant’s, whose opinion was offered over a year before Plaintiff’s onset date and before she

was diagnosed with additional impairments.” (Id. at 13). The Acting Commissioner responds

that substantial evidence supports the ALJ’s evaluation of Dr. Okamoto’s opinion. (Resp., ECF

No. 11, at 6). I agree with the Acting Commissioner.

Plaintiff observes that the ALJ rejected the disabling restrictions determined by Dr.

Okamoto regarding her likely monthly absences, her need for multiple extended breaks during

the workday and her ability to stand, walk, lift, and carry. (Pl.’s Br., ECF No. 10, at 12-13). She

contends that this rejection was in error because the ALJ failed to appropriately consider Dr.

Okamoto’s and Dr. Walker’s opinions pursuant to 20 C.F.R. § 404.1527(c), applicable to SSDI

claims (like Plaintiff’s) filed prior to March 27, 2017. (Id. at 13-14). Plaintiff notes that under

this regulation (and 20 C.F.R. § 416.927(c), for Plaintiff’s SSI claim), an examining source’s

medical opinion is generally entitled to more weight than a non-examining source’s opinion and

a treating source’s medical opinion is generally entitled to more weight than a non-treating

source’s opinion if the treating source has reasonable knowledge of the claimant’s impairments.

(Id. (citing 20 C.F.R. § 404.1527(c)(1), (2)(ii); see also 20 C.F.R. § 416.927(c)(1), (2)(ii))).

However, as the Acting Commissioner responds, a treating source’s opinion is only entitled to

controlling weight if it is both: “(1) well-supported by medically acceptable clinical and

laboratory diagnostic techniques and (2) not inconsistent with the other substantial evidence in

the record.” (Resp., ECF No. 11, at 6 (citing 20 C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2))). If

these factors are not present, “then the ALJ is free to give that opinion less than controlling

weight or even reject it, so long as the ALJ clearly explains her reasons and makes a clear

record.” Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 148 (3d Cir. 2007) (citing Jones v.

Sullivan, 954 F.2d 125, 129 (3d Cir. 1991)); see also Irey v. Colvin, No. 13-7423, 2016 WL

337019, at *4 (E.D. Pa. Jan. 27, 2016) (“the ALJ is not bound by the opinion of any one

physician, and can reject an opinion if there is a lack of support or a finding of contradictory

evidence in the record”) (citation omitted). In such cases, the treating source’s opinion “is

evaluated and weighed under the same standards applied to all other medical opinions, taking

into account numerous factors including the opinion’s supportability, consistency and

specialization.” Id. (citation omitted).

Pursuant to this framework, the initial question is whether Dr. Okamoto’s opinion is: (1)

well-supported by medically acceptable evidence, and (2) not inconsistent with other substantial

evidence. See 20 C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2). The ALJ found that the opinion

was inconsistent with Dr. Okamoto’s own treatment notes and other objective medical evidence,

and, therefore, much of the parties’ briefing centers on this second requirement.4 (R. 30; Pl.’s

Br., ECF No. 10, at 16-18; Resp., ECF No. 11, at 10-14, 15-16).

4 As discussed below, “consistency” is also one of the factors that the ALJ must consider

in assessing the relative weight of a medical opinion not accorded controlling weight. 20 C.F.R.

§§ 404.1527(c)(4), 416.927(c)(4).

According to Plaintiff, no evidentiary support exists for the ALJ’s determination that Dr.

Okamoto’s opinion is not consistent with her notes and other evidence. (Pl.’s Br., ECF No. 10,

at 16). In making this assertion, she cites substantial evidence tending to undermine the ALJ’s

determination that Dr. Okamoto’s opinion is inconsistent with the rest of the record, including

evidence reflecting her osteoarthritis in her knees, her degenerative disc disease in her lumbar

spine, her morbid obesity, her ankle weakness for which she was prescribed a brace, her antalgic

gait, her steroid injections and physical therapy, her “crippled” status per the Oswestry test, and

her physical therapy notes and testimony reflecting limitations in sitting, standing, walking and

stairclimbing. (Id. at 16-17 (citing R. 55, 407, 510-11, 514-15, 697, 785-86, 788-89, 809, 811,

846, 876, 944)).

However, the Acting Commissioner counters with substantial evidence supporting the

ALJ’s determination. This evidence includes Dr. Okamoto’s treatment notes reflecting normal

musculoskeletal examinations, the fact that Plaintiff generally visited Dr. Okamoto for ailments

unrelated to her impairments and the absence in the notes of any indication that Plaintiff’s pain

affected her ability to sit, walk, stand, or concentrate. (Resp., ECF No. 11, at 10-11 (citing R.

753-73)). In addition, the Acting Commissioner cites the findings and opinions of other medical

sources indicating that Plaintiff was less limited than determined by Dr. Okamoto, including Dr.

Walker’s administrative findings that Plaintiff could lift and carry more and stand, walk, and sit

longer than ultimately determined by Dr. Okamoto; Dr. Lowman’s physical examination results

showing normal gait, station, and psychiatric results; emergency room records showing that

Plaintiff had normal range of motion and gait and not indicating any pain-induced deficits in her

ability to concentrate, walk, stand, or sit; Dr. Park’s treatment notes indicating no such deficits

but instead stating that Plaintiff’s arthritis appeared “well controlled” with orthopedic injections

and medications, that she had declined or deferred other treatments, and that physical

examination results were generally normal; and Ms. Blakely’s treatment notes reflecting full

strength in Plaintiff’s legs, with no current symptoms or diminished ability to concentrate, walk,

stand, or sit. (Resp., ECF No. 11, at 11-14 (citing R. 83-84, 99-100, 105, 399-400, 404-05, 409,

454, 584, 712-42, 790-91, 805-81)).

Plaintiff takes issue with some of this evidence, arguing that Dr. Walker’s non-examining

opinion was authored more than a year prior to Plaintiff’s amended onset date when Dr. Walker

lacked access to approximately 500 pages of additional medical records reflecting new diagnoses

for congestive heart failure and knee osteoarthritis, a prescription for an ankle brace due to ankle

weakness, and a heart catheterization, and including Dr. Okamoto’s opinion, the specialists’

treatment notes, and additional imaging. (Pl.’s Br., ECF No. 10, at 15 (citing SSR 96-6p, 1996

WL 374180, at *2 (July 2, 1996))). However, Plaintiff ignores the ALJ’s discussion of this later-

generated evidence, much of which is summarized in the preceding paragraph, and which the

ALJ found to be consistent with Dr. Walker’s assessment but inconsistent with Dr. Okamoto’s.

(See R. 27-30 (discussing, inter alia, records of Dr. Park and Dr. Ogilby and from Plaintiff’s

emergency room visit and noting that Dr. Okamoto’s opinion was not consistent with the

objective medical evidence in the record)). The ALJ’s decision to credit Dr. Walker’s findings

over Dr. Okamoto’s was not error on the basis that Dr. Walker lacked access to additional

records tending to support her findings and further refute those of Dr. Walker.5 Salerno v.

Comm’r of Soc. Sec., 152 F. App’x 208, 209-10 (3d Cir. 2005) (affirming district court opinion

5 The fact that the later-generated evidence tended to support rather than contradict Dr.

Walker’s opinion distinguishes this case from Nazario v. Comm’r Soc. Sec., 794 F. App’x 204

(3d Cir. 2019), cited by Plaintiff. In that case, the evidence generated after the non-treating, non-

examining sources’ reports tended to contradict their conclusions that the claimant did not suffer

from disabling limitations. Id. at 206, 210.

upholding ALJ decision crediting opinion of non-examining source over that of a treating source

because “it was more consistent with the objective medical findings”); Starks v. Colvin, No. CV

16-6062, 2017 WL 4053755, at *3 (E.D. Pa. Sept. 12, 2017) (“An ALJ may choose to accept the

opinion of a non-treating, non-examining physician over the opinion of a treating physician so

long as she does not disregard the findings of the treating physician’s opinion and there is

medical evidence in the record contradicting the treating physician’s opinion.”) (quoting Brown

v. Astrue, 649 F.3d 193, 196 (3d Cir. 2011)).

Plaintiff additionally takes issue with the ALJ’s reference to Dr. Okamoto’s

“unremarkable musculoskeletal findings” during Plaintiff’s visit for a cold in May 2018, also

noted above, accusing the ALJ of “cherry-picking” this evidence from a mere “‘visual overview’

of her extremities during an appointment focused on another condition” while failing to mention

her Oswestry score translating to a designation of “crippled.” (Pl.’s Br., ECF No. 10, at 17). But

there are multiple problems with Plaintiff’s arguments. First, the ALJ can hardly be said to have

cherry-picked the results of this one examination when all four visits with Dr. Okamoto showed

similar musculoskeletal findings. (R. 755, 762, 766, 769, 773). Second, insofar as Plaintiff

suggests that Dr. Okamoto’s musculoskeletal findings should be disregarded because

Plaintiff was treating for generally unrelated conditions, such as abdominal pain,

hypertension, and a cold, the same reasoning could be applied to the limitations set forth in

Dr. Okamoto’s opinion because these limitations were unrelated to the conditions for which

Plaintiff primarily sought treatment from Dr. Okamoto. Third, the fact that the ALJ did not

specifically reference Plaintiff’s “crippled” status under the Oswestry test is immaterial

because an ALJ need not discuss “every tidbit of evidence included in the record,” Hur v.

Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004), and, in any event, the ultimate issue of whether

Plaintiff is disabled is reserved to the Commissioner. See Smith v. Comm’r of Soc. Sec., 178 F.

App’x 106, 112 (3d Cir. 2006).

In short, although Plaintiff cites substantial evidence that might have supported the

acceptance in full of Dr. Okamoto’s opinion, and thus a finding of disabling limitations, this fact

is not a basis for remand. Because substantial evidence also supports the ALJ’s determination

that Dr. Okamoto’s opinion was inconsistent with much of the remaining record, the ALJ was

permitted to accord that opinion less than controlling weight. See Simmonds, 807 F.2d at 58

(“While there is other evidence in the record that could support a finding of disability . . . , our

inquiry is not whether the ALJ could have reasonably made a different finding based on this

record. Rather, we must review whether the ALJ’s actual findings are supported by substantial

record evidence.”); see also Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (a treating

source’s opinion must only be accorded controlling weight if it is “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence in the claimant’s case record”) (citation and internal brackets omitted).

As Plaintiff observes, however, this does not conclude the evaluation of Dr. Okamoto’s

opinion. (Pl.’s Br., ECF No. 10, at 18-19). Even where a treating source’s medical opinion is

not accorded controlling weight, the ALJ must determine what, if any, weight is warranted based

upon consideration of several factors: the treatment relationship between the source and the

claimant including the length of treatment and frequency of examination and the nature and

extent of the treatment relationship; the supportability of the opinion; its consistency; the treating

source’s specialization, if any; and any relevant “other factors.” 20 C.F.R. §§ 404.1527(c)(2)-

(6), 416.927(c)(2)-(6).

Regarding the first factor listed above, Plaintiff complains that the ALJ “gave no obvious

consideration” to the fact that Dr. Okamoto treated and examined Plaintiff “several times” over

the course of four months before providing her opinion. (Pl.’s Br., ECF No. 10, at 14-15). She

claims that the ALJ’s rejection of Dr. Okamoto’s opinion partially because of her treatment of

Plaintiff only “for a short time” is nonsensical in light of the greater weight accorded the opinion

of Dr. Walker, who never treated or examined Plaintiff. (Id. at 14). As an initial matter,

Plaintiff’s characterization of the length and frequency of her treatment with Dr. Okamoto is not

entirely accurate. Plaintiff treated with Dr. Okamoto only four times over approximately two-

and-a-half months, and the ALJ’s decision specifically referenced three of the four visits. (R.

28, 753-73). The Third Circuit Court of Appeals has found significantly longer periods

insufficient to warrant crediting a treating source’s opinion. See, e.g., Lee v. Comm’r Soc.

Sec., 248 F. App’x 458, 461 (3d Cir. 2007) (concluding “that the ALJ appropriately

discounted [a treating source’s] opinion,” in part because the “treatment was limited in

time” to 14 months); see also 20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i) (“Generally, the

longer a treating source has treated you and the more times you have been seen by a treating

source, the more weight we will give to the source’s medical opinion.”). Nor was the ALJ

required to accord Dr. Okamoto’s opinion greater weigh than Dr. Walker’s because the former

treated and examined her and the latter did not, as discussed above. See Salerno, 152 F. App’x at

209-10; Starks, 2017 WL 4053755, at *3. This is particularly true where, as here, the ALJ found

that Dr. Okamoto only treated Plaintiff “for a short time.” See 20 C.F.R. §§ 404.1527(c)(2)(i),

416.927(c)(2)(i) (a treating source’s opinion is accorded greater weight “[w]hen the treating

source has seen you a number of times and long enough to have obtained a longitudinal picture

of your impairment”) (emphasis added).

Regarding supportability, the regulations provide that a medical opinion will be

given more weight “[t]he better an explanation a source provides for [the] medical opinion”

and “[t]he more a medical source presents relevant evidence to support [the] medical

opinion, particularly medical signs and laboratory findings . . . .” 20 C.F.R. §§

404.1527(c)(3), 416.927(c)(3). Here, the Acting Commissioner contends that Dr. Okamoto’s

medical opinion was provided on a preprinted “checkbox” form without substantial explanations

for the limitations determined by her. (Resp., ECF No. 11, at 9-10). A review of the opinion

shows that the Acting Commissioner’s characterization is largely accurate. In recording

Plaintiff’s limitations, Dr. Okamoto merely checked columns next to various abilities indicating

Plaintiff’s functionality in each area. (R. 696-99). In support of each overall category of

functionality (i.e., lifting/carrying, sitting/standing/walking, use of hands/feet, postural activities,

environmental limitations), Dr. Okamoto generally made only vague references to the record

rather than provide any explanation or narrative. (See R. 696-98 (“x ray with degen back

disease, MRI result pending”; “x ray spine, clinical history, visits to rheum & orthopedics”; “see

PT report”; “see specialist notes”; “would be difficult to be seated”; “based on exam &

history”)). This failure to explain the bases for Plaintiff’s purported limitations is significant

because it “by itself would justify the ALJ’s decision to accord [the opinion] little weight.”

Cunningham v. Comm’r of Soc. Sec., 507 F. App’x 111, 119 (3d Cir. 2012); see also Mason v.

Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (“Form reports in which a physician’s obligation is

only to check a box or fill in a blank are weak evidence at best.”).

The next factor, consistency, has largely been addressed already in the context of whether

to accord Dr. Okamoto’s opinion controlling weight. As noted there, substantial evidence

supports the ALJ’s finding that Dr. Okamoto’s opinion was inconsistent with much of the record,

including multiple treating and/or examining providers’ findings that Plaintiff had a normal gait

and physical examination results and not mentioning any pain-induced deficits in her ability to

concentrate, walk, stand, or sit. (R. 83-84, 99-100, 105, 399-400, 404-05, 409, 454, 584, 712-42,

790-91, 805-81). In addition to Plaintiff’s challenges to this evidence, addressed above, she also

argues that the ALJ improperly treated her “increased pain after doing housework

and . . . exercis[e] on a bike at the YMCA” as inconsistent with the severity of her reported

symptoms. (Pl.’s Br., ECF No. 10, at 16). In fact, all that the ALJ wrote on this point was: “Of

note, the claimant told her physical therapist on June 13, 2018 that she had increased pain

because she did ‘a bunch of housework’ the previous day and on July 16, 2018, the claimant

reported that she recently joined the YMCA and was exercising on a bike with upper extremity

attachments for 30 minutes at a time.” (R. 29). The ALJ made no further reference to this

evidence, including when she listed her reasons for according Dr. Okamoto’s opinion little

weight. (R. 30). Plaintiff posits that the ALJ “plainly drew” an “inference” that Plaintiff’s

performance of housework “equated to the performance of light exertional work 8 hours a day,”

but the ALJ’s lone discussion of the physical therapy notes regarding the housework and exercise

bike appears to have been by way of summary only. (Pl.’s Br., ECF No. 10, at 16).

In any event, to the extent that the ALJ did view this evidence as inconsistent with Dr.

Okamoto’s opinion (despite not identifying it as such), she had other bases to discount the

opinion (i.e., those actually listed in the decision), including Dr. Okamoto’s contemporaneous

treatment notes, the other medical evidence noted in this paragraph and above, and Plaintiff’s

oral testimony at the administrative hearing. (R. 30). Moreover, insofar as Plaintiff’s ability to

do housework and exercise on a recumbent bike factored into the ALJ’s decision, it was not error

for the ALJ to consider these activities of daily living, notwithstanding the pain they caused

Plaintiff. See Harkins v. Comm’r of Soc. Sec., No. 20-1728, 2022 WL 409490, at *1 n.1 (W.D.

Pa. Feb. 10, 2022) (“a plaintiff need not be entirely pain free or experiencing no discomfort at all

in order to be found not disabled under the Act”) (citing Andreolli v. Comm’r of Soc. Sec., No.

07-1632, 2008 WL 5210682, at *4 (W.D. Pa. Dec. 11, 2008); see also 20 C.F.R. §§

416.945(a)(1), 404.1545(a)(1) (RFC is defined as the most an individual can still do despite her

limitations)).

As to the last factor,6 specialization, Plaintiff points out that the ALJ did not

“acknowledge or discuss Dr. Okamoto’s specialty as a board-certified physician.” (Pl.’s Br.,

ECF No. 10, at 14). However, she neglects to mention that Dr. Okamoto’s specialty is in internal

medicine, with a subspecialty in general internal medicine. See Dr. Emi E. Okamoto, M.D., U.S.

News and World Report Profile, available at https://health.usnews.com/doctors/emi-okamoto-

1166318 (last visited October 26, 2022). Plaintiff observes that the regulations provide that more

weight is normally given to specialists’ opinions “about medical issues related to his or her area

of specialty,” but she fails to explain how the limitations in Dr. Okamoto’s opinion stemming

primarily from Plaintiff’s degenerative disc disease and arthritis relate to her specialty in internal

medicine. 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5). As the Acting Commissioner observes,

Dr. Okamoto is not a specialist “in orthopedics or rheumatology – areas that might be more

relevant to Plaintiff’s conditions and her functional abilities.” (Resp., ECF No. 11, at 10).

Because I find no reversible error in the ALJ’s evaluation of the medical opinions in this

matter, I deny Plaintiff’s request for review.

6 As noted, the regulations also provide for the consideration of “other factors” brought

to the ALJ’s attention, but no such additional factors beyond those addressed herein are

identified in the parties’ briefs. 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6).

VI. CONCLUSION

For the reasons set forth above, Plaintiff’s request for review is DENIED. An

appropriate Order follows.

BY THE COURT:

/s/ Lynne A. Sitarski .

LYNNE A. SITARSKI

United States Magistrate Judge