Henderson v. Berryhill

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROSE HENDERSON, : Civil No. 1:19-CV-811

:

Plaintiff :

:

v. : (Magistrate Judge Carlson)

:

ANDREW SAUL, :

Commissioner of Social Security,1 :

:

Defendant :

MEMORANDUM OPINION

I. Introduction

The Supreme Court has recently underscored for us the limited scope of our

review when considering Social Security appeals, noting that:

The phrase “substantial evidence” is a “term of art” used throughout

administrative law to describe how courts are to review agency

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––,

135 S. Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-

evidence standard, a court looks to an existing administrative record

and asks whether it contains “sufficien[t] evidence” to support the

agency’s factual determinations. Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, 59 S. Ct. 206, 83 L.Ed. 126 (1938) (emphasis

deleted). And whatever the meaning of “substantial” in other contexts,

the threshold for such evidentiary sufficiency is not high. Substantial

evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see,

e.g., Perales, 402 U.S. at 401, 91 S. Ct. 1420 (internal quotation marks

omitted). It means—and means only—“such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Commissioner

of Social Security, Andrew Saul, is automatically substituted as the defendant in

place of the former Acting Commissioner of Social Security. Fed. R. Civ. P. 25(d).

Consolidated Edison, 305 U.S. at 229, 59 S. Ct. 206. See Dickinson v.

Zurko, 527 U.S. 150, 153, 119 S. Ct. 1816, 144 L.Ed.2d 143 (1999)

(comparing the substantial-evidence standard to the deferential clearly-

erroneous standard).

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).

In the instant case, Rose Henderson applied for disability insurance benefits

under Title II of the Social Security Act on April 19, 2015, alleging disability due to

fibromyalgia, hypothyroidism, obesity, and depressive disorder, among other

impairments. (Tr. 309). However, after a consideration of the medical records and

opinion evidence, which generally showed that Henderson’s pain was being

managed with medication and that her mental health issues were being treated with

medication and outpatient therapy, the Administrative Law Judge (“ALJ”) who

reviewed this case concluded that Henderson could perform a range of sedentary

work with limitations and denied her disability application.

Mindful of the fact that substantial evidence “means only—'such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion,’”

Biestek, 139 S. Ct. at 1154, we find that substantial evidence supported the ALJ’s

findings in this case. Therefore, for the reasons set forth below, we will affirm the

decision of the Commissioner denying this claim.

II. Statement of Facts and of the Case

On April 29, 2015, Rose Henderson applied for disability and disability

insurance benefits, alleging an onset date of disability beginning February 10, 2013

due to migraine headaches, fibromyalgia, arthralgia, depressive disorder,

hypothyroidism, obesity, vitamin D deficiency, and pes planus. (Tr. 87-88).

Henderson was approximately 46 years old at the time of the alleged onset of her

disability and had prior employment as a laborer, which was medium unskilled work.

(Tr. 35). She had a high school education and could communicate in English. (Id.).

Henderson treated at Cumberland Valley Counseling Associates from June

2012 to June 2015 for her depression and anxiety. (Tr. 555-633). In March of 2013,

she was diagnosed with major depressive disorder, severe without psychotic

features. (Tr. 564). Henderson continued to treat at Cumberland Valley Counseling

with weekly outpatient counseling sessions throughout 2013 and 2014, and monthly

sessions beginning in January 2015 to June 2015. (Tr. 555-633). At a February 2014

assessment, it was noted that Henderson had depression and anxiety and was stressed

about her sons’ personal situations, but she reported a clear thought process, non-

psychotic thought content and normal range of affect. (Tr. 602-03). In September,

Gene Galbraith, M.A. reported that Henderson was “doing better” and had “no

complaints,” and recommended that she exercise. (Tr. 620). Galbraith consistently

reported that Henderson had made good progress most weeks from session to

session, rating her progress at a 7 or 8 out of 10 from week to week. (Tr. 615, 619,

622, 626, 628-29).

Henderson also treated at Leedy Abbey Counseling services from January

2013 through May 2015 for her major depressive disorder. (Tr. 436-61). In January

2013, it was noted that Henderson had depressed mood and a blunted affect, but that

her memory was intact and she had coherent thought processes. (Tr. 460). Treatment

notes also noted that Henderson was compliant with her medications and was not

experiencing any medication side effects. (Tr. 443, 445, 447, 449, 453). In December

2014, Henderson was observed as having a depressed mood but normal affect and

calm behaviors. (Tr. 442). Her memory was intact and she had coherent thought

processes. (Id.)

Henderson also treated at Pinnacle Health Family Care for depression,

fibromyalgia, migraines, osteoarthritis and knee pain. (Tr. 462-512). In April 2013,

Dr. Fowler noted that Henderson’s fibromyalgia pain was aggravated by lifting and

movement but was relieved by pain medications. (Tr. 498). It was reported that

Henderson’s depression was worsening at this time, and that she had difficulty

concentrating and falling asleep, as well as fatigue and excess worry. (Id.)

Henderson continued to treat with Dr. Fowler for her depression and saw Dr. Wilson

for her fibromyalgia, knee pain, and foot pain. In March of 2015, it was noted that

her symptoms of depression were worsening and that her depression was associated

with her chronic pain. (Tr. 468). It was also noted that her left knee pain was

worsening at this time and was aggravated by climbing stairs but was relieved by

pain medications. (Id.) In January 2016, Henderson was seen at the Stevens Center

for a psychiatric evaluation, in which it was noted that she had a depressed mood,

normal thought content, and good insight and judgment. (Tr. 668). The treatment

plan indicated that Henderson was to continue psychotherapy and continue her

medications. (Tr. 669).

From December 2015 to March 2017, Henderson was seen at Geisinger

Family Medicine for her fibromyalgia, osteoarthritis, and migraines. (Tr. 777-917).

Treatment notes from a December 8, 2015 visit noted that her depression and anxiety

were controlled on medications and that Henderson was seeing a psychiatrist. (Tr.

777). In March 2016, Henderson reported feeling depressed “once in a while” and

denied fatigue, lack of energy, and insomnia. (Tr. 812). It was noted that she had a

normal mood and normal affect. (Tr. 815). At a follow up visit in April 2017,

Henderson again stated that she felt depressed “once in a while” but reported that

her medicine was working well for her. (Tr. 864).

It is against this clinical backdrop that a hearing was held on this disability

application on April 10, 2017, where Henderson appeared and testified, and a

Vocational Expert also testified. (Tr. 45-75). A supplemental hearing was then held

on January 12, 2018. (Tr. 76-86). Following these hearings, the ALJ issued a

decision denying this application for benefits, finding that Henderson remained

capable of performing a range of sedentary jobs in the national economy in the

representative occupations of a final assembler and dowel inspector. (Tr. 36).

In that decision, the ALJ first concluded the Henderson had met the insured

status requirements of the Social Security Act from the date of her onset of disability

through December 31, 2018 and had not engaged in any substantial gainful activity

since her alleged onset date of disability on February 12, 2015. (Tr. 26). At Step 2

of the sequential analysis that governs Social Security cases, the ALJ found that

Henderson suffered from the following severe impairments: generalized

osteoarthritis, fibromyalgia, migraine without aura and without status migrainosus,

post-traumatic stress disorder, and major depressive disorder. (Tr. 28). The ALJ also

carefully considered a number of other medical conditions, but the ALJ ultimately

concluded that these impairments did not limit Henderson’s ability to perform

sustained work tasks more than minimally, and thus found these impairments to be

non-severe. (Id.). At Step 3, the ALJ determined that none of these impairments met

or medically equaled the severity of one of the listed impairments. (Tr. 28-30).

Between Steps 3 and 4, the ALJ fashioned a residual functional capacity

(“RFC”), which considered all of Henderson’s limitations from her impairments:

After careful consideration of the entire record, the undersigned finds

that, through the date last insured, the claimant had the residual

functional capacity to perform sedentary work as defined in 20 C.F.R.

404.1567(a) except limited to simple, routine, repetitive tasks,

involving 1-2 step instructions and occasional changes in the work

setting. The claimant can lift less than 10 pounds frequently and can

occasionally (defined as up to 1/3 of the workday) climb ramps and

stairs. She can never climb ladders, ropes or scaffolds and can never

crouch. The claimant can occasionally balance, stoop, kneel and crawl

and cannot have exposure to hazards (i.e. unprotected heights or

moving machinery).

(Tr. 30).

In making this RFC determination, the ALJ considered all of the medical and

opinion evidence in this case. (Tr. 30-35). On this score, the ALJ gave significant

weight to the opinion of Dr. Michael Brown, the state agency consultant, who opined

that Henderson was capable of performing a range of sedentary activity, except that

Henderson could lift less than 10 pounds frequently with occasional postural

activity. (Tr. 32). The ALJ reasoned that Dr. Brown’s July 2015 opinion was

consistent with the medical evidence that showed an abnormal gait and lower left

extremity weakness, and records indicated that Henderson was limited in her

postural activity. (Tr. 32-33).

The ALJ afforded partial weight to Dr. Boatwright, who performed an internal

medicine examination in June of 2015. (Tr. 33). The ALJ noted that Dr. Boatwright’s

examination was partially consistent with Dr. Brown’s findings in that Henderson

was limited in her ability to lift and in her postural movements, but that there was no

evidence Henderson was able to sit for 4 hours per day as Dr. Boatwright had opined.

The ALJ also considered the opinion of Dr. Wilson, Henderson’s treating

provider. (Tr. 33). Dr. Wilson opined that Henderson could perform occasional

lifting and carrying of up to 20 pounds, could stand and/or walk for 1 hour of an 8-

hour workday, and could sit for 6 hours of an 8-hour workday. (Id.) Dr. Wilson also

opined that Henderson could occasionally use her hands and feet and could

occasionally perform most postural activities. (Id.) The ALJ afforded Dr. Wilson’s

opinion only partial weight, as the ALJ found that Dr. Wilson’s opinion was

consistent with a light work RFC and that Henderson was more limited and better

suited for sedentary work, due to her use of a cane and moderate osteoarthritis in her

left knee. (Id.)

As for Henderson’s mental impairments, the ALJ gave great weight to the July

2015 opinion of Dr. Banks, the state agency consultant. (Id.) Dr. Banks opined

Henderson had a moderate limitation in the ability to understand, remember and

carry out detailed instructions, maintain attention and concentration, make simple

work-related decisions, and response to changes in the workplace. (Id.) The ALJ

reasoned that Dr. Banks’ opinion was consistent with Henderson’s history of

conservative outpatient treatment and was supported by the findings of normal

mental status examinations. (Id.)

The ALJ also considered the opinion of CRNP Sandra Abbey and afforded

her opinion little weight. (Tr. 33-34). Abbey opined that Henderson would only have

the ability to sustain an ordinary routine without special supervision and ask simple

questions or request assistance. (Tr. 33). The ALJ reasoned that Abbey’s opinion

was not supported by the lack of psychiatric admission and ability to manage her

symptoms with conservative mental health treatment. (Tr. 33-34). Specifically, the

ALJ pointed to Abbey’s opinion that Henderson had no useful ability to function in

the bulk of areas needed to perform unskilled work, even though Henderson

generally showed intact cognitive functioning, concentration, and memory. (Tr. 34).

The ALJ considered the opinion of Gene Galbraith, M.A., a therapist who

opined that Henderson could not meet the competitive standards to do unskilled

work, and that she had limited to seriously limited abilities in the ability to

understand, remember and carry out simple instructions, ask simple questions, and

interact appropriately with the general public. (Tr. 34). The ALJ first noted that

Galbraith was not an acceptable medical source. (Id.) Further, the ALJ reasoned that

this opinion was not consistent with the largely conservative mental health treatment

that Henderson had undergone and the largely normal findings on psychiatric

examination. (Id.)

Finally, the ALJ considered Henderson’s subjective statements concerning

her impairments. Henderson alleged that she suffered from severe migraines,

fibromyalgia pain, and depressive disorder, among other impairments. (Tr. 31). She

reported using a cane to help her walk, and that she did not do household chores or

prepare meals. (Id.) She stated that she had difficulty handling stress and changes in

routine, and that she required reminders from her husband to take her medications.

(Id.) She reported being able to go out alone, drive, and shop, and that she could

handle a savings account (Id.) She also stated that she continued to experience pain

despite taking her pain medications. (Id.) On this score, the ALJ found that her

statements were not entirely consistent with the medical evidence in the record. The

ALJ noted that an x-ray of the left knee in May 2015 showed only moderate changes

of osteoarthritis, and that a June 2015 brain MRI showed no evidence of intracranial

abnormality or abnormal enhancement. (Id.) The ALJ reasoned that despite the

alleged severity of her symptoms, Henderson would be able to perform a range of

sedentary work. (Id.) It was noted that her pain improved with medications, and that

she did not require surgical intervention for her knee pain. (Id.) In addition,

concerning her mental impairments, the ALJ reasoned that Henderson had generally

treated her impairments with medication and conservative outpatient therapy. (Tr.

32). The ALJ further noted that Henderson never required inpatient psychiatric

intervention or any other significant treatment, and that she generally showed intact

attention, concentration and memory and fair insight and judgment. (Id.)

Having arrived at this RFC assessment based upon an evaluation of these

clinical records, medical opinions, and the claimant’s statements, the ALJ found at

Step 4 that Henderson could not perform her past work. (Tr. 35). However, at Step

5, the ALJ found that there were a number of sedentary jobs in the national economy

that she could perform, such as a final assembler and dowel inspector. (Tr. 36).

Accordingly, the ALJ concluded that Henderson did not meet the stringent standard

for disability set by the Social Security Act and denied her disability claim. (Tr. 37).

This appeal followed. (Doc. 1). On appeal, Henderson contends the ALJ erred

in the RFC determination that Henderson could perform a limited range of sedentary

work and did not account for Henderson’s mental limitations. Henderson also

contends that the ALJ erred in evaluating her subjective complaints concerning her

symptoms. This case is fully briefed and is, therefore, ripe for resolution. For the

reasons set forth below, under the deferential standard of review that applies here,

we will affirm the decision of the Commissioner.

III. Discussion

A. Substantial Evidence Review – the Role of this Court

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, this Court’s review is limited to the question of whether the

findings of the final decision-maker are supported by substantial evidence in the

record. See 42 U.S.C. §405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200

(3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012).

Substantial evidence “does not mean a large or considerable amount of evidence, but

rather such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial

evidence is less than a preponderance of the evidence but more than a mere scintilla.

Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not

substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a

conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.

1993). But in an adequately developed factual record, substantial evidence may be

“something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent [the ALJ’s decision]

from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,

383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is

supported by substantial evidence the court must scrutinize the record as a whole.”

Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).

The Supreme Court has recently underscored for us the limited scope of our

review in this field, noting that:

The phrase “substantial evidence” is a “term of art” used throughout

administrative law to describe how courts are to review agency

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––,

135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-

evidence standard, a court looks to an existing administrative record

and asks whether it contains “sufficien[t] evidence” to support the

agency's factual determinations. Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis

deleted). And whatever the meaning of “substantial” in other contexts,

the threshold for such evidentiary sufficiency is not high. Substantial

evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see,

e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks

omitted). It means—and means only—“such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v.

Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)

(comparing the substantial-evidence standard to the deferential clearly-

erroneous standard).

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).

The question before this Court, therefore, is not whether the claimant is

disabled, but rather whether the Commissioner’s finding that she is not disabled is

supported by substantial evidence and was reached based upon a correct application

of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205,

at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s errors of law denote

a lack of substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512

F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary’s determination as to the status

of a claim requires the correct application of the law to the facts.”); see also Wright

v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on

legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary

review of all legal issues . . . .”).

Several fundamental legal propositions flow from this deferential standard of

review. First, when conducting this review “we are mindful that we must not

substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777 F.3d

607, 611 (3d Cir. 2014) (citing Rutherford, 399 F.3d at 552). Thus, we are enjoined

to refrain from trying to re-weigh the evidence. Rather our task is to simply

determine whether substantial evidence supported the ALJ’s findings. However, we

must also ascertain whether the ALJ’s decision meets the burden of articulation

demanded by the courts to enable informed judicial review. Simply put, “this Court

requires the ALJ to set forth the reasons for his decision.” Burnett v. Comm'r of Soc.

Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). As the Court of Appeals has noted

on this score:

In Burnett, we held that an ALJ must clearly set forth the reasons for

his decision. 220 F.3d at 119. Conclusory statements . . . are

insufficient. The ALJ must provide a “discussion of the evidence” and

an “explanation of reasoning” for his conclusion sufficient to enable

meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d

501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ

particular “magic” words: “Burnett does not require the ALJ to use

particular language or adhere to a particular format in conducting his

analysis.” Jones, 364 F.3d at 505.

Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

Thus, in practice ours is a twofold task. We must evaluate the substance of the

ALJ’s decision under a deferential standard of review, but we must also give that

decision careful scrutiny to ensure that the rationale for the ALJ’s actions is

sufficiently articulated to permit meaningful judicial review.

B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ

To receive benefits under the Social Security Act by reason of disability, a

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); 42 U.S.C.

§1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(a). To satisfy this

requirement, a claimant must have a severe physical or mental impairment that

makes it impossible to do his or her previous work or any other substantial gainful

activity that exists in the national economy. 42 U.S.C. §423(d)(2)(A); 42 U.S.C.

§1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits under

Title II of the Social Security Act, a claimant must show that he or she contributed

to the insurance program, is under retirement age, and became disabled prior to the

date on which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).

In making this determination at the administrative level, the ALJ follows a

five-step sequential evaluation process. 20 C.F.R. §§404.1520(a), 416.920(a).

Under this process, the ALJ must sequentially determine: (1) whether the claimant

is engaged in substantial gainful activity; (2) whether the claimant has a severe

impairment; (3) whether the claimant’s impairment meets or equals a listed

impairment; (4) whether the claimant is able to do his or her past relevant work; and

(5) whether the claimant is able to do any other work, considering his or her age,

education, work experience and residual functional capacity (“RFC”). 20 C.F.R.

§§404.1520(a)(4), 416.920(a)(4).

Between Steps 3 and 4, the ALJ must also assess a claimant’s residual

functional capacity (RFC). RFC is defined as “that which an individual is still able

to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm’r

of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R.

§§404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this

assessment, the ALJ considers all of the claimant’s medically determinable

impairments, including any non-severe impairments identified by the ALJ at step

two of his or her analysis. 20 C.F.R. §§404.1545(a)(2), 416.945(a)(2).

There is an undeniable medical aspect to an RFC determination, since that

determination entails an assessment of what work the claimant can do given the

physical limitations that the claimant experiences. Yet, when considering the role

and necessity of medical opinion evidence in making this determination, courts have

followed several different paths. Some courts emphasize the importance of medical

opinion support for an RFC determination and have suggested that “[r]arely can a

decision be made regarding a claimant's residual functional capacity without an

assessment from a physician regarding the functional abilities of the claimant.”

Biller v. Acting Comm’r of Soc. Sec., 962 F.Supp. 2d 761, 778–79 (W.D. Pa. 2013)

(quoting Gormont v. Astrue, Civ. No. 11–2145, 2013 WL 791455 at *7 (M.D. Pa.

Mar. 4, 2013)). In other instances, it has been held that: “There is no legal

requirement that a physician have made the particular findings that an ALJ adopts

in the course of determining an RFC.” Titterington v. Barnhart, 174 F. App’x 6, 11

(3d Cir. 2006). Further, courts have held in cases where there is no evidence of any

credible medical opinion supporting a claimant’s allegations of disability that “the

proposition that an ALJ must always base his RFC on a medical opinion from a

physician is misguided.” Cummings v. Colvin, 129 F.Supp.3d 209, 214–15 (W.D.

Pa. 2015).

These seemingly discordant legal propositions can be reconciled by

evaluation of the factual context of these decisions. Those cases which emphasize

the importance of medical opinion support for an RFC assessment typically arise in

the factual setting where a well-supported medical source has opined regarding

limitations which would support a disability claim, but an ALJ has rejected the

medical opinion which supported a disability determination based upon a lay

assessment of other evidence. In this setting, these cases simply restate the

commonplace idea that medical opinions are entitled to careful consideration when

making a disability determination, particularly when those opinions support a

finding of disability. In contrast, when an ALJ is relying upon other evidence, such

as contrasting clinical or opinion evidence or testimony regarding the claimant’s

activities of daily living, to fashion an RFC courts have adopted a more pragmatic

view and have sustained the ALJ’s exercise of independent judgment based upon all

of the facts and evidence. See Titterington v. Barnhart, 174 F. App’x 6, 11 (3d Cir.

2006); Cummings, 129 F.Supp.3d at 214–15. In either event, once the ALJ has made

this determination, our review of the ALJ's assessment of the plaintiff's RFC is

deferential, and that RFC assessment will not be set aside if it is supported by

substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also

Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar.

29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No.

3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun v. Berryhill,

No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and

recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27,

2018).

At Steps 1 through 4, the claimant bears the initial burden of demonstrating

the existence of a medically determinable impairment that prevents him or her from

engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once

this burden has been met by the claimant, it shifts to the Commissioner at Step 5 to

show that jobs exist in significant number in the national economy that the claimant

could perform that are consistent with the claimant’s age, education, work

experience and RFC. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d at

1064.

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significant among these legal benchmarks is a requirement that the

ALJ adequately explain the legal and factual basis for this disability determination.

Thus, in order to facilitate review of the decision under the substantial evidence

standard, the ALJ's decision must be accompanied by "a clear and satisfactory

explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d

Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate

which evidence was accepted, which evidence was rejected, and the reasons for

rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in

his decision which evidence he has rejected and which he is relying on as the basis

for his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d Cir.

1999).

C. Legal Benchmarks for the ALJ’s Assessment of Medical Opinion

Evidence and Lay Testimony

The Commissioner’s regulations also set standards for the evaluation of

medical evidence, and define medical opinions as “statements from physicians and

psychologists or other acceptable medical sources that reflect judgments about the

nature and severity of [a claimant’s] impairment(s), including [a claimant’s]

symptoms, diagnosis and prognosis, what [a claimant] can still do despite

impairments(s), and [a claimant’s] physical or mental restrictions.” 20 C.F.R.

§404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate every

medical opinion received. 20 C.F.R. § 404.1527(c).

In deciding what weight to accord competing medical opinions and evidence,

the ALJ is guided by factors outlined in 20 C.F.R. § 404.1527(c). “The regulations

provide progressively more rigorous tests for weighing opinions as the ties between

the source of the opinion and the individual become weaker.” SSR 96-6p, 1996 WL

374180 at *2. Treating sources have the closest ties to the claimant, and therefore

their opinions generally entitled to more weight. See 20 C.F.R. § 404.1527(c)(2)

(“Generally, we give more weight to opinions from your treating sources...”); 20

C.F.R. § 404.1502 (defining treating source). Under some circumstances, the

medical opinion of a treating source may even be entitled to controlling weight. 20

C.F.R. § 404.1527(c)(2); see also SSR 96-2p, 1996 WL 374188 (explaining that

controlling weight may be given to a treating source’s medical opinion only where

it is well-supported by medically acceptable clinical and laboratory diagnostic

techniques, and it is not inconsistent with the other substantial evidence in the case

record).

Where no medical source opinion is entitled to controlling weight, the

Commissioner’s regulations direct the ALJ to consider the following factors, where

applicable, in deciding the weight given to any non-controlling medical opinions:

length of the treatment relationship and frequency of examination; nature and extent

of the treatment relationship; the extent to which the source presented relevant

evidence to support his or her medical opinion, and the extent to which the basis for

the source’s conclusions were explained; the extent to which the source’s opinion is

consistent with the record as a whole; whether the source is a specialist; and, any

other factors brought to the ALJ’s attention. 20 C.F.R. § 404.1527(c).

Oftentimes, as in this case, an ALJ must evaluate medical opinions and

records tendered by a number of different medical sources. Judicial review of this

aspect of ALJ decision-making is guided by several settled legal tenets. First, when

presented with a disputed factual record, it is well-established 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). Thus, when weighing competing medical opinions

“the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or

for the wrong reason.’” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting

Mason, 994 F.2d at 1066). Therefore, provided that the decision is accompanied by

an adequate, articulated rationale, it is the province and the duty of the ALJ to choose

which medical opinions and evidence deserve greater weight.

Further, in making this assessment of medical evidence:

An ALJ is [also] entitled generally to credit parts of an opinion without

crediting the entire opinion. See Thackara v. Colvin, No. 1:14–CV–

00158–GBC, 2015 WL 1295956, at *5 (M.D.Pa. Mar. 23, 2015);

Turner v. Colvin, 964 F. Supp. 2d 21, 29 (D.D.C. 2013) (agreeing that

“SSR 96–2p does not prohibit the ALJ from crediting some parts of a

treating source's opinion and rejecting other portions”); Connors v.

Astrue, No. 10–CV–197–PB, 2011 WL 2359055, at *9 (D.N.H. June

10, 2011). It follows that an ALJ can give partial credit to all medical

opinions and can formulate an RFC based on different parts from the

different medical opinions. See e.g., Thackara v. Colvin, No. 1:14–CV–

00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015).

Durden v. Colvin, 191 F.Supp.3d 429, 455 (M.D. Pa. 2016).

Similar considerations govern an ALJ’s evaluation of lay testimony. When

evaluating lay testimony regarding a claimant’s reported degree of disability, we are

reminded that:

[T]he ALJ must necessarily make certain credibility determinations,

and this Court defers to the ALJ's assessment of credibility. See Diaz v.

Comm'r, 577 F.3d 500, 506 (3d Cir. 2009) (“In determining whether

there is substantial evidence to support an administrative law judge's

decision, we owe deference to his evaluation of the evidence [and]

assessment of the credibility of witnesses....”). However, the ALJ must

specifically identify and explain what evidence he found not credible

and why he found it not credible. Adorno v. Shalala, 40 F.3d 43, 48 (3d

Cir. 1994) (citing Stewart v. Sec'y of Health, Education and Welfare,

714 F.2d 287, 290 (3d Cir. 1983)); see also Stout v. Comm'r, 454 F.3d

1050, 1054 (9th Cir. 2006) (stating that an ALJ is required to provide

“specific reasons for rejecting lay testimony”). An ALJ cannot reject

evidence for an incorrect or unsupported reason. Ray v. Astrue, 649

F.Supp.2d 391, 402 (E.D.Pa. 2009) (quoting Mason v. Shalala, 994

F.2d 1058, 1066 (3d Cir. 1993)).

Zirnsak v. Colvin, 777 F.3d 607, 612–13 (3d Cir. 2014).

Yet, it is also clear that:

Great weight is given to a claimant's subjective testimony only when it

is supported by competent medical evidence. Dobrowolsky v. Califano,

606 F.2d 403, 409 (3d Cir. 1979); accord Snedeker v. Comm'r of Soc.

Sec., 244 Fed.Appx. 470, 474 (3d Cir. 2007). An ALJ may reject a

claimant's subjective testimony that is not found credible so long as

there is an explanation for the rejection of the testimony. Social

Security Ruling (“SSR”) 96–7p; Schaudeck v. Comm'r of Social

Security, 181 F.3d 429, 433 (3d Cir. 1999). Where an ALJ finds that

there is an underlying medically determinable physical or mental

impairment that could reasonably be expected to produce the

individual's pain or other symptoms, however, the severity of which is

not substantiated by objective medical evidence, the ALJ must make a

finding on the credibility of the individual's statements based on a

consideration of the entire case record.

McKean v. Colvin, 150 F.Supp.3d 406, 415–16 (M.D. Pa. 2015) (footnotes omitted).

Thus, we are instructed to review an ALJ’s evaluation of a claimant’s subjective

reports of pain under a standard of review which is deferential with respect to the

ALJ’s well-articulated findings but imposes a duty of clear articulation upon the ALJ

so that we may conduct meaningful review of the ALJ’s conclusions.

In the same fashion that medical opinion evidence is evaluated, the Social

Security Rulings and Regulations provide a framework under which the severity of

a claimant's reported symptoms are to be considered. 20 C.F.R. §§ 404.1529,

416.929; SSR 16–3p. It is important to note that though the “statements of the

individual concerning his or her symptoms must be carefully considered, the ALJ is

not required to credit them.” Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 363

(3d. Cir. 2011) (referencing 20 C.F.R. §404.1529(a) (“statements about your pain or

other symptoms will not alone establish that you are disabled.”). It is well-settled in

the Third Circuit that “[a]llegations of pain and other subjective symptoms must be

supported by objective medical evidence.” Hantraft v. Apfel, 181 F.3d 358, 362 (3d

Cir. 1999) (referring to 20 C.F.R. § 404.1529). When evaluating a claimant’s

symptoms, the ALJ must follow a two-step process in which the ALJ resolves

whether a medically determinable impairment could be the cause of the symptoms

alleged by the claimant, and subsequently must evaluate the alleged symptoms in

consideration of the record as a whole. SSR 16-3p.

First, symptoms, such as pain or fatigue, will only be considered to affect a

claimant's ability to perform work activities if such symptoms result from an

underlying physical or mental impairment that has been demonstrated to exist by

medical signs or laboratory findings. 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR

16–3p. During the second step of this credibility assessment, the ALJ must determine

whether the claimant's statements about the intensity, persistence or functionally

limiting effects of his or her symptoms are substantiated based on the ALJ's

evaluation of the entire case record. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 16–

3p. This includes but is not limited to: medical signs and laboratory findings,

diagnosis and other medical opinions provided by treating or examining sources, and

other medical sources, as well as information concerning the claimant's symptoms

and how they affect his or her ability to work. Id. The Social Security Administration

has recognized that individuals may experience their symptoms differently and may

be limited by their symptoms to a greater or lesser extent than other individuals with

the same medical impairments, signs, and laboratory findings. SSR 16–3p.

Thus, to assist in the evaluation of a claimant's subjective symptoms, the

Social Security Regulations identify seven factors which may be relevant to the

assessment of the severity or limiting effects of a claimant's impairment based on a

claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). These factors

include: activities of daily living; the location, duration, frequency, and intensity of

the claimant's symptoms; precipitating and aggravating factors; the type, dosage,

effectiveness, and side effects of any medication the claimant takes or has taken to

alleviate his or her symptoms; treatment, other than medication that a claimant has

received for relief; any measures the claimant has used to relieve his or her

symptoms; and, any other factors concerning the claimant's functional limitations

and restrictions. Id.; see George v. Colvin, No. 4:13–CV–2803, 2014 WL 5449706,

at *4 (M.D. Pa. Oct. 24, 2014); Koppenaver v. Berryhill, No. 3:18-CV-1525, 2019

WL 1995999, at *9 (M.D. Pa. Apr. 8, 2019), report and recommendation adopted

sub nom. Koppenhaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1992130 (M.D.

Pa. May 6, 2019); Martinez v. Colvin, No. 3:14-CV-1090, 2015 WL 5781202, at

*8–9 (M.D. Pa. Sept. 30, 2015).

D. The ALJ’s Decision in this Case is Supported by Substantial

Evidence.

In this setting, we are mindful that we are not free to substitute our

independent assessment of the evidence for the ALJ’s determinations. Rather, we

must simply ascertain whether the ALJ’s decision is supported by substantial

evidence, a quantum of proof which is less than a preponderance of the evidence but

more than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401 (1971), and

“does not mean a large or considerable amount of evidence,” Pierce v. Underwood,

487 U.S. 552, 565 (1988), but rather “means—and means only—'such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’ ”

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Judged against these deferential

standards of review, we find that substantial evidence supported the ALJ’s decision

that Henderson was not entirely disabled.

With respect to the RFC assessment, Henderson challenges the ALJ’s finding

that she could perform a limited range of sedentary work. Specifically, Henderson

asserts that the ALJ did not adequately account for limitations caused by her mental

impairments. Further, Henderson argues that the ALJ’s reliance on a state agency

consultative examiner was misplaced, as that psychological consultant did not have

the benefit of reviewing Henderson’s entire medical record. She contends that the

ALJ should have ordered a medical expert to appear at the hearing or sent

interrogatories to a medical expert after the hearing.

At the outset, we note that Henderson’ argument on this score is broad and

does not identify any specific ambiguities between the evidence of record and the

ALJ’s RFC concerning Henderson’s mental impairments, nor does she identify

which evidence in the record is not consistent with the state agency consultant’s

opinion on which the ALJ partially relied. Moreover, the Court of Appeals has made

it clear that “the ALJ is not precluded from reach RFC determinations without

outside medical review of each fact incorporated into the decision.” Chandler v.

Comm’r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011). Rather, “[a]lthough reliance

on State consultants’ and treating physicians’ opinions is common and ALJs are

required to consider any existing state consultant reports, the regulations do not

require ALJs to seek outside expert assistance.” Id. (citing 20 C.F.R. §§ 404.1519,

404.1527(f), 404.1546(c), 404.1527(e); SSR 96-5p). Accordingly, we cannot

conclude that the ALJ erred in giving significant weight to Dr. Banks’ opinion

simply because Dr. Banks did not have the opportunity to review the plaintiff’s entire

medical record. The record in this case indicates that the ALJ took all of the medical

evidence and opinion evidence into consideration and fashioned an RFC that

appropriately accounted for Henderson’s mental impairments by limiting her to

simple, routine, repetitive tasks, involving 1-2 step instructions and occasional

changes in the work setting. Thus, we find the plaintiff’s first argument to be without

merit.

Henderson also argues that the ALJ erred in finding that her statements

regarding the intensity, persistence, and limiting effects of her symptoms were

inconsistent with the evidence. Henderson contends that the ALJ did not consider

the effectiveness and the side effects of her medications, the frequency and intensity

of her pain, other pain relief treatment and functional restrictions. However, to the

contrary, the ALJ discussed Henderson’s subjective complaints and determined that

they were inconsistent with the medical evidence. Henderson stated that her

impairments affected her ability to lift, squat, bend, stand, reach, walk, sit, kneel,

climb stairs, remember, complete tasks, concentrate, and understand and follow

instructions. On this score, the ALJ took these statements into account to the extent

they were consistent with the medical record, as the RFC limited Henderson to

simple, routine repetitive tasks with only 1-2 step instructions and occasional

changes in work setting. Moreover, the RFC accounted for Henderson’s physical

limitations by limiting her to only occasional postural limitations.

The ALJ further reasoned that despite the alleged severity of her symptoms,

Henderson would be able to perform a range of sedentary work. It was noted that

her pain improved with medications, and that she did not require surgical

intervention for her knee pain. In addition, concerning her mental impairments, the

ALJ reasoned that Henderson had generally treated her impairments with medication

and conservative outpatient therapy. The ALJ further noted that Henderson never

required inpatient psychiatric intervention or any other significant treatment, and

that she generally showed intact attention, concentration and memory and fair insight

and judgment. The ALJ examined Henderson’s treatment notes, which indicated that

her depression and her pain was being managed by medications and outpatient

therapy. In addition, although a June 2015 functional capacity evaluation suggested

that Henderson could perform light work, the ALJ found that Henderson’s use of a

cane limited her to sedentary work rather than light work. Overall, the ALJ

determined that Henderson’s subjective complaints concerning the severity of her

pain and her impairments were inconsistent with the record as a whole. On this score,

we find that the ALJ’s opinion regarding the claimant’s statements is supported by

substantial evidence.

In this case, the ALJ was required to examine the medical evidence of record,

coupled with Henderson’s subjective complaints regarding her impairments, and

was tasked with determining what range of work Henderson could perform, if any.

Given Henderson’s conservative treatment for her pain and her mental health

impairments, and the fact that her pain and depression was being managed during

the relevant time period, the ALJ found that Henderson could perform less than a

full range of sedentary work. It is the right and responsibility of the ALJ to make

such assessments and we find that substantial evidence; that is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion,”

Biestek, 139 S. Ct. at 1154, supported these determinations.

We further find that the ALJ’s evaluation of the lay testimony complied with

the requirements prescribed by the Commissioner’s regulations and the law. At

bottom, it appears that the plaintiff is requesting that this court re-weigh the

evidence. This we may not do. See Chandler v. Comm’r of Soc. Sec., 667 F.3d 356,

359 (3d Cir. 2011) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (“Courts

are not permitted to re-weigh the evidence or impose their own factual

determinations”); see also Gonzalez v. Astrue, 537 F.Supp.2d 644, 657 (D. Del.

2008) (“In determining whether substantial evidence supports the Commissioner’s

findings, the Court may not undertake a de novo review of the Commissioner’s

decision and may not re-weigh the evidence of the record”) (internal citations

omitted)). Rather, our task is simply to determine whether the ALJ’s decision is

supported by substantial evidence, a quantum of proof which is less than a

preponderance of the evidence but more than a mere scintilla, Richardson, 402 U.S.

at 401, and “does not mean a large or considerable amount of evidence, but rather

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

conclusion.” Pierce, 487 U.S. at 565.

In closing, the ALJ’s assessment of the evidence in this case complied with

the dictates of the law and was supported by substantial evidence. This is all that the

law requires, and all that a claimant can demand in a disability proceeding. Thus,

notwithstanding the argument that this evidence might have been viewed in a way

which would have also supported a different finding, we are obliged to affirm this

ruling once we find that it is “supported by substantial evidence, ‘even [where] this

court acting de novo might have reached a different conclusion.’” Monsour Med.

Ctr. v. Heckler, 806 F.2d 1185, 1190–91 (3d Cir. 1986) (quoting Hunter Douglas,

Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential

standard of review that applies to appeals of Social Security disability

determinations, we find that substantial evidence supported the ALJ’s evaluation of

this case.

IV. Conclusion

Accordingly, for the foregoing reasons, IT IS ORDERED that the final

decision of the Commissioner denying these claims is AFFIRMED.

An appropriate order follows.

/s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

Submitted this 20th day of May, 2020