Opinion

Wheeler v. Saul

Court: District Court, M.D. Pennsylvania
Filed: Jun 15, 2020
Cited by: 0 cases
Authority: More cited than 29.1%

“[T]he court has plenary review of all legal issues . . . .”

How later courts described this case

“[T]he court has plenary review of all legal issues . . . .”
referring to 20 C.F.R. § 404.1529
agreeing that “SSR 96–2p does not prohibit the ALJ from crediting some parts of a treating source’s opinion and rejecting other portions”
“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 . . . .”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALBERT EDWARD WHEELER, III, : Civil No. 1:19-CV-1340

Plaintiff :

v. : (Magistrate Judge Carlson)

ANDREW SAUL, :

Commissioner of Social Security, :

Defendant :

MEMORANDUM OPINION

I. Introduction

In Albert Wheeler’s case we most assuredly do not write upon a blank slate.

Quite the contrary, this is Wheeler’s second Social Security Appeal in a case that

has spanned the past seven years. In March of 2018, this court remanded Wheeler’s

case for further consideration by the Commissioner, finding that the Administrative

Law Judge (ALJ) had provided an insufficient explanation for the decision to give

greater weight to the opinion of a non-examining, non-treating state agency expert

than the opinion expressed by Wheeler’s treating physician. Wheeler v. Berryhill,

No. 3:16-CV-01916, 2018 WL 1528763, at *10 (M.D. Pa. Mar. 8, 2018), report and

recommendation adopted, No. 3:16-CV-1916, 2018 WL 1518572 (M.D. Pa. Mar.

28, 2018). At the time of this decision, there were only two medical opinions on

record in these administrative proceedings, the treating source opinion of Dr.

Falvello and a non-examining state agency doctor’s opinion provided by Dr.

Gryczko. Id.

Following this remand, additional medical evidence and opinions were

obtained. There are now four medical opinions of record in this appeal. Three of

these medical opinions conclude that Wheeler retains the residual functional

capacity to perform either light or sedentary work. Considering this additional

evidence, along with treatment notes from two physicians, and several independent

reports concerning Wheeler’s activities of daily living, the ALJ found that Wheeler

could perform a limited range of sedentary work, and denied his disability claim.

This appeal then ensued. In considering this, Wheeler’s second appeal, we are

mindful that we are required to apply a deferential standard of review to the well-

articulated findings of the ALJ. Indeed, 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.”

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, three medical sources have now opined that Wheeler could

perform a limited range of work. These three opinions are based upon test results, as

well as clinical and anecdotal reports which contain sufficient evidence to support

the agency’s factual determinations. Therefore, 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. Accordingly, 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

Albert Wheeler initially applied for disability benefits nearly seven years ago.

On August 10, 2013, Wheeler applied for disability benefits pursuant to Title II of

the Social Security Act, alleging an onset date of disability beginning July 26, 2013.

(Tr. 16). According to Wheeler he had become totally disabled due to degenerative

disc disease and joint disease in his knees. (Tr. 18). Wheeler was born in 1969 and

was 43 years old at the time of the alleged onset of his disability, making him a

younger worker under the Commissioner’s regulations. (Tr. 25). He had a high

school education and prior employment as a forklift operator and shipping clerk.

(Id.)

In April of 2015, following an administrative hearing (Tr. 31-64), the ALJ

entered a decision denying Wheeler’s disability claim. (Tr. 13-30). In this decision

the ALJ found that, notwithstanding his impairments, Wheeler retained the residual

functional capacity to perform a range of sedentary work. (Tr. 20). In reaching this

decision, the ALJ considered the only two medical opinions that were in the

administrative record—a July 21, 2014 check block form completed by a treating

source, Dr. Falvello (Tr. 302-07) and a September 23, 2013 non-examining, non-

treating state agency expert opinion rendered by Dr. Gryczko. (Tr. 88-92). These

two medical evaluations presented very different assessments of Wheeler’s

capabilities. For his part, Dr. Falvello opined that Wheeler was totally disabled. In

contrast, Dr. Gryczko stated that he believed Wheeler could perform light work. The

ALJ’s 2015 decision afforded greater weight to the state agency expert opinion than

the treating source opinion of Dr. Falvello, reasoning that the state agency opinion

was more congruent with the clinical and anecdotal evidence regarding Wheeler’s

impairments, condition, limitations, treatment and activities of daily living. (Tr. 23-

25). Wheeler appealed this agency ruling and in March of 2018, this court remanded

this case for further consideration by the Commissioner, finding that the ALJ had

provided an insufficient explanation for the decision to give greater weight to the

opinion of a non-examining, non-treating state agency expert than the opinion

expressed by Wheeler’s treating physician. Wheeler v. Berryhill, No. 3:16-CV-

01916, 2018 WL 1528763, at *10 (M.D. Pa. Mar. 8, 2018), report and

recommendation adopted, No. 3:16-CV-1916, 2018 WL 1518572 (M.D. Pa. Mar.

28, 2018).

Additional administrative proceedings then ensued. In the course of these

proceedings, the ALJ received further testimony and information regarding

Wheeler’s medical conditions, impairments, and activities of daily living. The ALJ

was also provided extensive and updated clinical and treatment records for Wheeler.

(Tr. 777-1419). This extensive documentation presented a mixed picture regarding

the degree to which Wheeler’s impairments were wholly disabling. For example, at

the time he applied for disability benefits, Wheeler was employed and was working

12-hour shifts at a plant. (Tr. 166). Wheeler’s wife, in turn, completed a function

report in support of this disability application, which stated that Wheeler had

significant difficulties with self-care, but acknowledged that he was able to get his

teenage son off to school, work the third shift, prepare meals, including meals with

several courses, help with his son’s homework, play with him, take care of his dogs,

do light cleaning, fold laundry, wash dishes, do small household repairs, do some

yardwork, go outside daily, go shopping in stores, build model cars, modify action

figures for his son, play video games, go out on dates with his spouse, and go on

weekly outings to his family’s homes. (Tr. 167-73). Similarly, during his first

administrative hearing in this case, Wheeler described his impairments but testified

that he helped to take care of his teenage son, cooked for him, helped him with his

laundry and homework, shopped in stores, did some light cleaning, washed dishes,

did some small household repairs and some yard work, cared for his two dogs,

played video games, could comfortably lift 10 pounds, built models as a hobby and

occasionally helped his son during football season by tossing the football with him.

(Tr. 43, 51-54).

Clinical records also presented an equivocal portrait regarding the severity of

Wheeler’s symptoms. At times Wheeler reported pain and tenderness in back and

knees. (Tr. 312, 325, 342, 343, 347, 1113). However, these reports were episodic.

Thus, by February 2017, Wheeler indicated that he experienced 50-70% pain relief

with the injections and stated that his average daily pain was 2-3/10. (Tr. 1309).

Likewise in April 2017, Wheeler denied significant lumbar pain. (Tr. 1302). In

October 2017, Wheeler stated that his pain was a 1/10, and with prolonged walking

and standing a 5/10. (Tr. 1277). According to Wheeler, he was walking one mile

daily with his weight loss program. (Tr. 1277). Six months later, in early March

2018, Wheeler described his average daily pain as a 1-2/10. (Tr. 1274). Further, on

occasion when Wheeler reported pain and discomfort, it was associated with

physical labor far beyond the requirements of sedentary work. For example, In

August 2018, Wheeler told Dr. Falvello that he had increased shoulder pain from

working on his car. (Tr. 1384).

Aside from Wheeler’s well-documented, but somewhat equivocal, reports of

his symptoms, these clinical records also provided a mixed picture of the degree to

which his back and knee symptoms were disabling. From 2013 through 2018, care-

givers often noted that Wheeler maintained a full or significant range of motion,

normal strength and reflexes, and showed negative straight leg raising test results.

(Tr. 343, 347, 352, 355, 1113). Further, with the exception of an arthroscopic

procedure on his knee, the course of treatment prescribed for Wheeler during this

time span was relatively conservative, consisting of ice, exercise, cortisone shots,

chiropractic care, physical therapy, and pain medications which Wheeler reported

provided him with significant relief. (Tr. 325, 356, 359, 962, 964-66, 971-79, 983,

1068, 1302, 1309).

Finally, by 2019, the administrative record contained two additional medical

expert opinions relating to Wheeler’s capacity to perform some work

notwithstanding his impairments. Both of these subsequent medical opinions

concluded that Wheeler could perform some work and discounted the extreme

disabling limitations found by Dr. Falvello in 2014. First, Dr. Michael Lombard, a

state agency expert, provided an assessment based upon a more complete body of

Wheeler’s medical records on January 20, 2017. (Tr. 567-74). Following this records

review, Dr. Lombard concluded that that Wheeler was not disabled but rather could

perform sedentary work. (Id.) Later, on January 24, 2019, Dr. David Owens, a

physician who possessed an active-retired license, testified as an expert witness at

Wheeler’s second administrative disability hearing. (Tr. 403-23). At the time of the

hearing, Dr. Owens’ qualifications as a medical expert witness were not questioned

and the doctor was accepted without objection as a medical expert. (Tr. 404).

Dr. Owens testified that he had had access to all of Wheeler’s medical records

through August of 2018. (Tr. 405). Thus, Dr. Owens had the opportunity to consider

the most complete body of medical, clinical evidence, and was able to examine

numerous records that were created after Dr. Falvello expressed his July 2014

medical opinion. Based upon this comprehensive medical record review, Dr. Owens

concluded that Wheeler retained the ability to perform sedentary work and

discounted Dr. Falvello’s 2014 opinion that Wheeler’s impairments were so severe

that his condition met a listing requirement. (Tr. 408-09).

Therefore, by 2019, four physicians had evaluated Wheeler and offered

medical opinions concerning his ability to work. Of these four medical opinions,

three found that he retained the residual functional capacity to perform at least a

limited range of sedentary work; one opinion concluded that he was wholly disabled.

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

application on January 24, 2019, where Wheeler, Dr. Owens and a Vocational Expert

appeared and testified. (Tr. 386-432). Following this hearing, the ALJ issued a

decision on April 10, 2019 denying this application for benefits, finding that Wheeler

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

(Tr. 361-79).

In that decision, the ALJ first concluded the Wheeler met the insured status

requirements of the Social Security Act from the date of his alleged onset of

disability through December 31, 2018. (Tr. 366). At Step 2 of the sequential analysis

that governs Social Security cases, the ALJ found that Wheeler suffered from an

array of severe impairments, including obesity, degenerative disc disease, diabetes,

arthritis in his lower extremities, joint disease, neuropathy, carpel tunnel syndrome,

as well as knee and elbow pain. (Tr. 366-67). At Step 3, the ALJ determined that

none of these impairments met or medically equaled the severity of one of the listed

impairments. (Tr. 367-68).

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

(“RFC”), which considered all of Wheeler’s limitations from his impairments and

found that he could perform a limited range of sedentary work notwithstanding these

impairments. (Tr. 368-69). In making this RFC determination, the ALJ engaged in a

lengthy, and carefully detailed discussion and analysis of Wheeler treatment history.

(Tr. 369-77). This treatment history analysis documented Wheeler’s orthopedic care

over time, recording his impairments due to degenerative disc disease and arthritis.,

but also describing the medical findings which indicated that he had a good range of

motion and was able to manage his pain through medication, physical therapy and

exercise. (Tr. 369-73). In addition, this medical recital documented the fairly

conservative course of treatment which Wheeler received for these conditions. (Id.)

This analysis also expressly considered the way in which Wheeler’s weight, and

diabetes, affected these underlying conditions. (Tr. 373-74). The ALJ then expressly

incorporated these clinical findings into the RFC assessment in this case. (Tr. 374).

Further, the ALJ’s analysis took in account Wheeler’s activities of daily living,

which included walking with the assistance of a cane, light housework and yard

work, and some activities with his son. (Tr. 374). Ultimately the ALJ found that: “In

balancing the level of activities with the claimant’s subjective reports and the

objective medical evidence, these activities are more consistent with a range of

sedentary function.” (Id.)

Finally, the ALJ separately evaluated each of the medical opinions offered in

this case, beginning with the July 2014 treating source opinion of Dr. Falvello. (Tr.

375). The ALJ gave this opinion partial weight to the extent that it identified

limitations that were consistent with sedentary work. (Id.) The ALJ declined to give

further weight to this opinion, however, noting that the finding of disability by Dr.

Falvello was inconsistent with some of the treatment records of Dr. Falvello and a

second treating physician, Dr. Duffy. (Id.)

The ALJ gave great weight to the opinion of Dr. Owens, who testified at

Wheeler’s second disability hearing in January of 2019 that Wheeler could perform

sedentary work. (Tr. 375-76). On this score, the ALJ reasoned that Dr. Owens had

access to the most extensive body of clinical evidence spanning through 2018 and

possessed access to years of medical records which post-dated Dr. Falvello’s July

2014 opinion. (Id.) The ALJ determined that this opinion deserved great weight

because it was more congruent with the clinical evidence, which contained many

findings within normal limits, and was more consistent with Wheeler’s reported

activities of daily living. (Tr. 376). The ALJ also gave some weight to the 2013

opinion of Dr. Gryczko, the state agency expert, but found that subsequent medical

developments suggested a greater degree of impairment than the light work RFC

found by Dr. Gryczko in 2013. (Tr. 377).

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 Wheeler could not perform his past work. (Tr. 377). However, at Step 5,

the ALJ found that there were a number of sedentary work jobs in the national

economy that he could perform. (Tr. 378-79). Accordingly, the ALJ concluded that

Wheeler did not meet the stringent standard for disability set by the Social Security

Act and denied this disability claim. (Id.)

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

in relying upon Dr. Owens’ opinion and attacks the doctor’s qualifications, arguing

that his licensure status as active-retired precluded him from testifying as an expert

witness. Wheeler advances argument even though he conceded that Dr. Owens was

qualified as a medical expert at the time of the administrative hearing. In addition,

Wheeler contends that the ALJ erred in the weighing of this medical opinion

evidence and in the evaluation of the severity of Wheeler’s 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).

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 706-07. 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 which apply to this case 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).

Moreover, when examining various medical opinions we are enjoined to also

consider that:

[I]n determining the weight to be given to a medical source opinion, it

is also well-settled that an ALJ may discount such an opinion when it

conflicts with other objective tests or examination results. Johnson v.

Comm’r of Soc. Sec., 529 F.3d 198, 202–03 (3d Cir. 2008). Likewise,

an ALJ may conclude that discrepancies between the source’s medical

opinion, and the treating doctor’s actual treatment notes, justifies giving

a treating source opinion little weight in a disability analysis. Torres v.

Barnhart, 139 Fed. App’x 411, 415 (3d Cir. 2005). Finally, “an opinion

from a treating source about what a claimant can still do which would

seem to be well-supported by the objective findings would not be

entitled to controlling weight if there was other substantial evidence

that the claimant engaged in activities that were inconsistent with the

opinion.” Tilton v. Colvin, 184 F. Supp. 3d 135, 145 (M.D. Pa. 2016).

Falcone v. Berryhill, No. 3:16-CV-1705, 2017 WL 7222358, at *9 (M.D. Pa. Nov.

29, 2017), report and recommendation adopted, No. 3:16CV1705, 2018 WL 646489

(M.D. Pa. Jan. 31, 2018).

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. App’x 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 Wheeler was not entirely disabled but could perform a limited range of sedentary

work.

At the outset, in this appeal Wheeler challenges the ALJ’s reliance upon the

medical opinion of Dr. Owens, the expert who testified at the January 2019

administrative hearing that he could perform some sedentary work. Wheeler’s

threshold attack upon this testimony questions Dr. Owens’ qualifications as an

expert witness, arguing that the doctor was not competent to render a medical

opinion due to the fact that his license status was active-retired.

This argument warrants only brief consideration since at the time of this

administrative hearing Wheeler expressly accepted Dr. Owens’ expert

qualifications. At that time the following exchange took place between the ALJ and

Wheeler’s counsel after Dr. Owens was questioned by counsel regarding his

qualifications and expertise:

ALJ: Do you have any objections to my qualifying him as a medical expert?

ATTY: No, no, ma’am.

(Tr. 404).

In our view, this exchange between the ALJ and Wheeler’s counsel

constituted an unambiguous waiver of any objection to the qualifications of this

witness. In a Social Security setting, case law is legion that a failure to object to an

expert’s qualifications before the ALJ constitutes a waiver of any qualifications

arguments on appeal. See e.g., Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir.

2001); Shepard on behalf of H.E.S. v. Comm'r of Soc. Sec., No. 17-10197, 2018 WL

1061696, at *4 (E.D. Mich. Feb. 27, 2018)(collecting cases); Pimentel v. Colvin,

No. CV 15-2662 (JLL), 2016 WL 3456919, at *5 (D.N.J. June 21, 2016); Birkinshaw

v. Astrue, 490 F. Supp. 2d 1136, 1142 (D. Kan. 2007). Thus, we find that Wheeler

has waived this objection, but in any event we conclude, as did the ALJ, that Dr.

Owens, a physician with an active-retired license, was a competent expert witness

in this case.

Wheeler also argues that the ALJ erred in the weighing and evaluating the

medical opinion evidence in this case. As we have noted, on this score: