Carrick v. Berryhill

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KIMBERLY CARRICK, ) CIVIL ACTION NO. 4:19-cv-692

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

ANDREW SAUL,1 )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Kimberly Carrick, an adult individual who resides within the Middle

District of Pennsylvania, seeks judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying her application for

disability insurance benefits under Title II of the Social Security Act. Jurisdiction is

conferred on this Court pursuant to 42 U.S.C. § 405(g).

After reviewing the parties’ briefs, the Commissioner’s final decision, and the

relevant portions of the certified administrative transcript, I find the Commissioner's

1 Andrew Saul was sworn in as Commissioner of Social Security on June 17, 2019.

He is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d). See also

Section 205(g) of the Social Security Act, 42 U.S.C. §405(g) (action survives

regardless of any change in the person occupying the office of Commissioner of

Social Security). The caption in this case is amended to reflect this change.

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final decision is supported by substantial evidence. Accordingly, the

Commissioner’s final decision will be AFFIRMED.

II. BACKGROUND & PROCEDURAL HISTORY

On September 19, 2016, Plaintiff protectively filed an application for

disability insurance benefits under Title II of the Social Security Act. (Admin. Tr.

126). In this application, Plaintiff initially alleged she became disabled as of May

30, 2012, when she was 49 years old, due to the following conditions: fibromyalgia;

depression; anxiety; muscle pain; joint pain; arthritis; fatigue; Hashimoto’s

thyroiditis; eye issues – flashing lights; and headaches/dizziness. (Admin. Tr. 153).

However, Plaintiff later amended her alleged onset date to September 19, 2016.

(Admin. Tr. 117). Plaintiff alleges that the combination of these conditions affects

her ability to lift, squat, bend, stand, walk, sit, kneel, climb stairs, see, remember,

concentrate, understand, follow instructions, and get along with others. (Admin. Tr.

146). Plaintiff has at least a high school education and is able to communicate in

English. (Admin. Tr. 20). Before the onset of her impairments, Plaintiff worked as a

painter. (Admin. Tr. 19).

On February 7, 2017, Plaintiff’s application was denied at the initial level of

administrative review. (Admin. Tr. 61-65). On March 16, 2017, Plaintiff requested

an administrative hearing. (Admin. Tr. 68-69).

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On May 16, 2018, Plaintiff, assisted by her counsel, appeared and testified

during a hearing before Administrative Law Judge Richard Guida (the “ALJ”).

(Admin. Tr. 29). On August 22, 2018, the ALJ issued a decision denying Plaintiff’s

application for benefits. (Admin. Tr. 12-21). On October 1, 2018, Plaintiff requested

review of the ALJ’s decision by the Appeals Council of the Office of Disability

Adjudication and Review (“Appeals Council”). (Admin. Tr. 7).

On March 14, 2019, the Appeals Council denied Plaintiff’s request for review.

(Admin. Tr. 1).

On April 24, 2019, Plaintiff initiated this action by filing a Complaint. (Doc.

1). In the Complaint, Plaintiff alleges that the ALJ’s decision denying the application

is not supported by substantial evidence, and improperly applies the relevant law and

regulations. Id. As relief, Plaintiff requests that the Court reverse the decision of the

ALJ and award Plaintiff disability insurance benefits, or in the alternative, remand

this case to the Commissioner for a new hearing. Id. at p. 3.

On September 5, 2019, the Commissioner filed an Answer. (Doc. 8). In the

Answer, the Commissioner maintains that the decision holding that Plaintiff is not

entitled to disability insurance benefits was made in accordance with the law and

regulations and is supported by substantial evidence. Id. Along with her Answer, the

Commissioner filed a certified transcript of the administrative record. (Doc. 9).

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Plaintiff’s Brief (Doc. 12), the Commissioner’s Brief (Doc. 13), and

Plaintiff’s Reply (Doc. 14) have been filed. This matter is now ripe for decision.

III. STANDARDS OF REVIEW

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]

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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 question before this Court, therefore, is not

whether Plaintiff is disabled, but whether the Commissioner’s finding that Plaintiff

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 . . . .”).

B. STANDARDS GOVERNING THE ALJ’S APPLICATION OF THE FIVE-STEP

SEQUENTIAL EVALUATION PROCESS

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

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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); see also

20 C.F.R. § 404.1505(a).2 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); 20 C.F.R. § 404.1505(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). 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).

2 Throughout this Opinion, I cite to the version of the administrative rulings and

regulations that were in effect on the date the Commissioner’s final decision was

issued. In this case, the ALJ’s decision, which serves as the final decision of the

Commissioner, was issued on August 22, 2018.

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Between steps three and four, the ALJ must also assess a claimant’s 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); 20 C.F.R.

§ 404.1545(a)(1). In making this assessment, the ALJ considers all 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).

At steps one through four, the claimant bears the initial burden of

demonstrating the existence of a medically determinable impairment that prevents

him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5);

20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once this burden has been met by

the claimant, it shifts to the Commissioner at step five 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); 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, 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

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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).

IV. ANALYSIS

Plaintiff’s arguments from her brief are best broken into two main issues:

(1) Substantial evidence does not support the ALJ’s evaluation of the

opinion evidence; and

(2) The ALJ’s multiple errors with symptom evaluation compel reversal

(Doc. 12, p. 1).

A. THE ALJ’S DECISION DENYING PLAINTIFF’S APPLICATION

In his August 2018 decision, the ALJ found that Plaintiff met the insured

status requirement of Title II of the Social Security Act through December 31, 2016.

(Admin. Tr. 14). Then, Plaintiff’s application was evaluated at steps one through

five of the sequential evaluation process.

At step one, the ALJ found that Plaintiff did not engage in substantial gainful

activity at any point between September 19, 2016 (Plaintiff’s alleged onset date) and

December 31, 2016 (Plaintiff's date last insured) (“the relevant period”). (Admin.

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Tr. 14). At step two, the ALJ found that, during the relevant period, Plaintiff had the

following medically determinable severe impairments: bursitis, degenerative joint

disease; fibromyalgia; and myopia. (Admin. Tr. 14). At step three, the ALJ found

that, during the relevant period, Plaintiff did not have an impairment or combination

of impairments that met or medically equaled the severity of an impairment listed in

20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 16).

Between steps three and four, the ALJ assessed Plaintiff’s RFC. The ALJ

found that, during the relevant period, Plaintiff retained the RFC to engage in light

work as defined in 20 C.F.R. § 404.1567(b) subject to the following additional

limitations:

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 light work as defined in 20 CFR

404.1567(b) and she could have frequently performed postural

activities except she could have occasionally used ladders, ropes, or

scaffolds. She could have occasionally perform (sic) left far acuity. She

should have avoided concentrated exposure to extreme cold, wetness,

vibrations, and hazards.

(Admin. Tr. 16).

At step four, the ALJ found that, during the relevant period, Plaintiff could

not engage in her past relevant work. (Admin. Tr. 19). At step five, the ALJ found

that, considering Plaintiff’s age, education and work experience, Plaintiff could

engage in other work that existed in the national economy. (Admin. Tr. 20). To

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support his conclusion, the ALJ relied on testimony given by a vocational expert

during Plaintiff’s administrative hearing and cited the following three (3)

representative occupations: cleaner housekeeper (DOT 323.687-014); bakery

worker conveyor line (DOT 524.687-022); and machine tender laminating (DOT

569.686-046). (Admin. Tr. 20).

B. WHETHER THE ALJ PROPERLY EVALUATED DR. BONLIE’S OPINION

Regarding the ALJ’s treatment of the opinion of Dr. Bonlie, Plaintiff raises

four arguments: (1) the ALJ failed to evaluate Dr. Bonlie’s opinion in accordance

with the checklist of factors under 20 C.F.R. 404.1527(c); (2) Dr. Bonlie’s opinion

was consistent with the record; (3) the ALJ should have contacted Dr. Bonlie to

obtain further explanation of his opinion; and (4) the ALJ assigned “great weight”

to a non-examining, non-treating source.

Because Plaintiff’s first and second issues are so closely tied, I will address

them together.

With respect to her first argument, Plaintiff argues:

[T]he ALJ failed to evaluate Dr. Bonlie’s opinion in accordance with

the checklist of factors that C.F.R. 404.1527(c) provides. Here, many

of these considerations favor crediting Dr. Bonlie’s opinion: Dr. Bonlie

has been routinely treating Carrick since September 2015 who routinely

prescribed medications to Carrick (Tr. 281-87). 404.1527(c)(2)

(“Generally, we give more weight to medical opinions from your

treating sources, since these sources are likely to be the medical

professionals most able to provide a detailed, longitudinal picture of

your medical impairment(s) and may bring a unique perspective to the

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medical evidence that cannot be obtained from the objective medical

findings alone or from reports of individual examinations, such as

consultative examinations or brief hospitalizations.” 404.1527(c)(5)

(“We generally give more weight to the medical opinion of a specialist

about medical issues related to his or her area of specialty than to the

medical opinion of a source who is not a specialist.”)

(Doc. 12, p. 7).

In response to Plaintiff’s first argument, Defendant argues:

Plaintiff contends that the ALJ did not analyze all of the 20 C.F.R. §

404.1527 factors (Pl.’s Br. At 7). The law, however, is clear that an ALJ

need not explicitly discuss each factor in his decision. Meji v. Berryhill,

No. 3:16-2558, 2018 WL 6495077, at *6 (M.D. Pa. Oct. 24, 2018),

report and recommendation adopted sub nom. Moreta Meji v.

Berryhill, No. 3:16-25558, 2018 WL 6448799 (M.D. Pa. Dec. 10, 2018)

(“the ALJ . . . does not need to specifically articulate the factors

considered in [20 C.F.R. § 404.1527].” Samah v. Comm’r of Soc. Sec.,

No. 17-08592, 2018 WL 6178862, at *5 (D.N.J. Nov. 27, 2018) (“an

ALJ need not explicitly discuss each factor in his decision”); Podvorec

v. Berryhill, No. 17-cv-00137, 2017 WL 3705062, at *8 (W.D. Pa. Aug.

28, 2017) (“Although the ALJ did not explicitly spell out all of these

factors in her decision, it contains enough detail for this Court to

meaningfully review it.”).

(Doc 13, p. 4).

Defendant then argued that the ALJ sufficiently explained his decision to

assign Dr. Bonlie’s opinion little weight.

Regarding her second argument, Plaintiff argues:

[C]ontrary to the ALJ’s finding, Dr. Bonlie’s opinion was consistent

with the record Supportive diagnostic studies included a right knee MRI

from December 2010 revealed degenerative joint disease,

patellofemoral joint (Tr. 415) and hip x-rays from October 2012 reveals

moderate degenerative changes of the left hip and mild degenerative

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changes of the right hip (Tr. 247). Supportive clinical findings

including positive tenderness to palpation over trochanteric bursa

bilaterally, markedly positive Ober’s test bilaterally and positive tender

points. (Tr. 419, 432) The record also consistently documents

supportive signs and symptoms: multiple tender points, hip pain,

nonrestorative sleep, chronic fatigue, morning stiffness, muscle

weakness, subjective swelling, frequent severe headaches, numbness

and tingling. (Tr. 281, 282, 284, 285, 419, 432, 518, 521, 535, 556)

Given Dr. Bonlie’s longitudinal treatment history with Carrick and the

consistency of his opinion with the medical evidence – the ALJ erred

in failing to afford Dr. Bonlie’s opinion great weight.

(Doc. 12, p. 8).

The Commissioner responds:

[T]he ALJ explained exactly why he gave Dr. Bonlie’s opinion little

weight. As the ALJ noted, the opinion “occurred significantly after the

December 31, 2016 date last insured” (Tr. 19) and, thus, was not

relevant to the time period at issue. Wolford v. Berryhill, No. 3:17-CV-

983, 2017 WL 6405865, at *3 (M.D. PA. Dec. 15, 2017). “The ALJ

was entitled to consider the complete medical record and to place

greater reliance on the contemporaneous entries than on the doctor’s

later, inconsistent opinion.” Scouten v. Comm’r Soc. Sec., 722 F. App’x

288, 290 (3d Cir. 2018) (citing Plummer v. Apfel, 186 F.3d 422, 430

(3d Cir. 1999)).

And that is exactly what the ALJ here did. Dr. Bonlie’s opinion was

inconsistent with the objective medical evidence. A physician’s opinion

is entitled to weight only if it “‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not inconsistent

with the other substantial evidence in [the claimant’s] case record.’”

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

C.F.R. § 404.1527(c)(2)). It is well established that an ALJ is “free to

accept some medical evidence and reject other evidence,” so long as he

“provides an explanation for discrediting the rejected evidence.”

Zirnsak v. Colvin, 777 F.3d 607, 614 (3d Cir. 2014).

(Doc. 13, pp. 4-5).

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I construe Plaintiff’s first and second arguments to be that the ALJ erred by

failing to accord Dr. Bonlie’s opinion great weight under 20 C.F.R. §

404.1527(c)(2). This provision of the regulations is commonly referred to as the

“treating physician rule” and states as follows:

(c) How we weigh medical opinions. Regardless of its source, we will

evaluate every medical opinion we receive. Unless we give a treating

source’s medical opinion controlling weight under paragraph (c)(2) of

this section, we consider all of the following factors in deciding the

weight we give to any medical opinion.

. . . .

(2) Treatment relationship. Generally, we give more weight to medical

opinions from your treating sources, since these sources are likely to

be the medical professionals most able to provide a detailed,

longitudinal picture of your medical impairment(s) and may bring a

unique perspective to the medical evidence that cannot be obtained

from the objective medical findings alone or from reports of individual

examinations, such as consultative examinations or brief

hospitalizations. If we find that a treating source’s medical opinion on

the issue(s) of the nature and severity of your impairment(s) is well-

supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in

your case record, we will give it controlling weight. When we do not

give the treating source’s medical opinion controlling weight, we apply

the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as

well as the factors in paragraphs (c)(3) through (c)(6) of this section in

determining the weight to give the medical opinion. We will always

give good reasons in our notice of determination or decision for the

weight we give your treating source’s medical opinion.

20 C.F.R. § 404.1527(c)(2) (emphasis added).

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“Where a conflict in the evidence exists, the ALJ may choose whom to credit

but ‘cannot reject evidence for no reason or the wrong reason.’” Plummer v. Apfel,

186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066). This principle

applies with particular force to the opinion of a treating physician. See 30 C.F.R. §

404.1527(c)(2). “A treating source’s opinion is not entitled to controlling weight if

it is ‘inconsistent with other substantial evidence in [the] case record.’” Scouten v.

Comm’r Soc. Sec., 722 Fed. Appx. 288, 290 (3d Cir. 1999) (quoting 20 C.F.R. §

404.1527(c)(2)).

At the outset, I note that the ALJ was not required to explicitly address each

factor under 20 C.F.R. 404.1527(c)(2). Thus, remand is not required on that issue. I

continue my analysis of whether the ALJ erred by assigning Dr. Bonlie’s opinion

“little weight.”

According to the record, Plaintiff treated with Dr. Bonlie between March 2016

and October 2016.3 (Admin. Tr. 281-87). According to Dr. Bonlie’s assessments,

Plaintiff’s symptoms included joint pain and fatigue. (Admin. Tr. 282, 284, 285).

3 Of the Dr. Bonlie reports cited by Plaintiff, the earliest dated report is March 10,

2016 (Admin. Tr. 285). However, on an RFC questionnaire, Dr. Bonlie stated that

his treatment of Plaintiff commenced in September 2015. (Admin. Tr. 556).

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On April 6, 2018, Dr. Bonlie completed an RFC questionnaire.4 (Admin. Tr.

556). In that questionnaire, Dr. Bonlie noted that he treated Plaintiff beginning in

September 2015 with appointments every two to three months. Id. Dr. Bonlie listed

Plaintiff’s diagnosed impairments as “hypothyroid OA Rt knee common variable

immune deficient” and indicated a “fair” prognosis. Id. Dr. Bonlie noted the

following symptoms through a checklist on the form: multiple tender points,

nonrestorative sleep, chronic fatigue, morning stiffness, muscle weakness,

subjective swelling, frequent severe headaches, vestibular dysfunction, numbness

and tingling, sicca symptoms, anxiety, panic attacks, depression, hypothyroidism,

and chronic fatigue syndrome. Id. Dr. Bonlie stated that Plaintiff’s symptoms were

constant, and she was incapable of even “low stress” jobs. (Admin. Tr. 556-57). Dr.

Bonlie stated that Plaintiff could walk one half of a city block without rest or severe

pain. (Admin. Tr. 558). Dr. Bonlie stated that Plaintiff would need to lie down on an

hourly basis for 15-30 minutes before returning to work. Id. Dr. Bonlie further noted

that Plaintiff could sit for thirty minutes before needing to get up and stand for five

minutes before needing to sit or walk around. Id.

4 Dr. Bonlie completed the April 6, 2018 RFC questionnaire more than one year

and three months after December 31, 2016 – Plaintiff’s date last insured. (Admin

Tr. 556).

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The ALJ gave “little weight” to the opinion of Dr. Bonlie. In doing so, the

ALJ stated:

[T]he April 6, 2018 opinion of primary care provider, Wayne Bonlie,

MD, is given little weight. This opinion occurred significantly after the

December 31, 2016 date last insured. Also, Dr. Bonlie’s treatment

records up to the date last insured do not note any objective

examinations performed by Dr. Bonlie (4F/1-7; 10F/1). On October 6,

2016, the examination by another provider in Dr. Bonlie’s office

resulted in findings unsupportive of Dr. Bonlie’s opinion; i.e. other than

“mild left flank tenderness,” results were normal including normal gait

(5F/2). Furthermore, treating rheumatology examinations on January

13, 2017 and February 9, 2017 note no objective abnormalities

supporting the limitations opined by Dr. Bonlie (12F/19-20, 28-29). For

example, regarding the right knee cited by Dr. Bonlie, the

rheumatologist noted: “there was mild tender crepitus on range of

motion of the right knee, there was no knee effusion or instability” and

“the contralateral knee was unremarkable” (12F/20).

(Admin. Tr. 19).

The ALJ explained his decision to assign Dr. Bonlie’s opinion little weight.

The ALJ noted that Dr. Bonlie’s opinion “occurred significantly after the December

31, 2016 date of last insured.” (Admin. Tr. 19). Thus, Dr. Bonlie’s opinion was not

relevant to the time period at issue. Wolford v. Berryhill, No. 3:17-CV-983, 2017

WL 6405865, at *3 (M.D. Pa. Dec. 15, 2017) (concluding that an opinion rendered

over one year after the date last insured was not relevant to the time period at issue).

An ALJ is entitled to assign greater weight to contemporaneous opinions than on a

later, inconsistent opinion. Scouten v. Comm’r of Soc. Sec., 722 Fed. Appx. 288,

290 (3d Cir. 2018) (“The ALJ was entitled to consider the complete medical record

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and to place greater reliance on the contemporaneous entries than on the doctor’s

later, inconsistent opinion.”). The ALJ weighed the medical evidence, finding that

contemporaneous evaluations of Plaintiff deserved greater weight than Dr. Bonlie’s

opinion which was rendered some 15 months after Plaintiff’s date last insured.

(Admin Tr. 18-19).

Regarding inconsistencies with the record, the ALJ stated that Dr. Bonlie’s

own treatment records show that Plaintiff prepared herself and her family for

holidays, took care of her chickens, cooked meals, did chores around the house like

laundry, drove, shopped, and managed her finances. (Admin. Tr. 176-177). As noted

above, Plaintiff argues that the record supports a conclusion that Plaintiff has the

following symptoms: multiple tender points, hip pain, nonrestorative sleep, chronic

fatigue, morning stiffness, muscle weakness, subjective swelling, frequent severe

headaches, numbness and tingling. (Doc. 12, p. 8). However, Dr. Bonlie’s treatment

records from the relevant time period merely provide a recitation of the subjective

report of Plaintiff’s symptoms. In each of the Dr. Bonlie medical reports cited by

Plaintiff, the section for an “objective” assessment is left blank. No objective

examinations are included in Dr. Bonlie’s reports. Plaintiff does not provide any

other citations to the record. Plaintiff has not shown any objective findings that are

consistent with the record. No error has been shown regarding the ALJ’s treatment

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of Dr. Bonlie’s opinion. Thus, the ALJ did not err when he assigned “little weight”

to Dr. Bonlie’s opinion.

Regarding her third argument, Plaintiff argues:

[I]f the ALJ was unable to discern how Dr. Bonlie’s opinion was

supported, given that the record contained Dr. Bonlie’s treatment

records, the ALJ should have recontacted Dr. Bonlie to obtain further

explanation of the opinion. Barnett v. Barnhart, 381 F.3d 664, 669 (7th

Cir. 2004), quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.

1996) (“If the ALJ thought he needed to know the basis of [medical]

opinions in order to evaluate them, he had a duty to conduct an

appropriate inquiry, for example, by subpoenaing the physicians or

submitting further questions to them.”).

(Doc. 12, p. 8).

Regarding Plaintiff’s third argument, Defendant argues:

[T]here was no obligation to re-contact Dr. Bonlie based on his report

that was inconsistent with the remainder of the record evidence. 20

C.F.R. § 404.1520b(b), (c). The substantial-evidence standard of

review, which requires only “more-than-a-mere-scintilla” of evidence,

Biestek, 139 S. Ct. at 1157, was easily satisfied based on the facts in

this case, and this Court should affirm.

(Doc. 13, p. 10).

The regulations on this subject explain that, after the ALJ reviews all of the

evidence, he or she makes findings about what that evidence shows. 20 C.F.R. §

404.1520b. If the ALJ cannot make a determination because the evidence in the

record is incomplete or inconsistent the ALJ may take the following actions:

(1) If any of the evidence in your case record, including any medical

opinion(s) and prior administrative medical findings, is inconsistent, we

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will consider the relevant evidence and see if we can determine whether

you are disabled based on the evidence we have.

(2) If the evidence is consistent but we have insufficient evidence to

determine whether you are disabled, or if after considering the evidence

we determine we cannot reach a conclusion about whether you are

disabled, we will determine the best way to resolve the inconsistency

or insufficiency. The action(s) we take will depend on the nature of the

inconsistency or insufficiency. We will try to resolve the inconsistency

or insufficiency by taking any one or more of the actions listed in

paragraphs (b)(2)(i) through (b)(2)(iv) of this section. We might not

take all of the actions listed below. We will consider any additional

evidence we receive together with the evidence we already have.

(i) We may recontact your medical source. We may choose not

to seek additional evidence or clarification from a medical source

if we know from experience that the source either cannot or will

not provide the necessary evidence. If we obtain medical

evidence over the telephone, we will send the telephone report to

the source for review, signature, and return;

(ii) We may request additional existing evidence;

(iii) We may ask you to undergo a consultative examination at

our expense (see §§ 416.917 through 416.919a); or

(iv) We may ask you or others for more information.

(3) When there are inconsistencies in the evidence that we cannot

resolve or when, despite efforts to obtain additional evidence, the

evidence is insufficient to determine whether you are disabled, we will

make a determination or decision based on the evidence we have.

20 C.F.R. § 404.1520b(b).

Here, there was enough evidence in this case for the ALJ to reach a conclusion

on the issue of disability. The ALJ did not have an obligation to recontact Dr. Bonlie

because the record as a whole was sufficient for the ALJ to reach a conclusion,

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remand is not required. See Grier v. Berryhill, No. 18-386, 2019 WL 2870728, at

*10 (D. Del. July 3, 2019) (citing Campell v. Colvin, 2016 WL 4503341, at *3 (W.D.

Pa. Aug. 29, 2016) (“An ALJ may only consider recontacting a treating physician,

where the evidence is consistent but there is insufficient evidence to determine

whether a claimant is disabled or after weighing the evidence the ALJ cannot reach

a conclusion about whether a claimant is disabled. The ALJ, however, is not

obligated to do so.”)).

As her fourth argument, Plaintiff challenges the ALJ’s assessment of Dr.

Bermudez’s opinion:

[T]he ALJ assigned “great weight” to the opinions of the non-

examining non-treating State Agency Medical Consultant, M.

Bermudez, MD. (Tr. 56-57) Pursuant to 20 CFR § 404.1527(c)(1),

more weight is assigned to the opinion of a source who has examined

the Claimant than to the opinion of a source who has not examined the

Claimant. Thus, State Agency doctors’ opinions are entitled to little, if

any, weight. Dr. Bermudez (Code 41) is a radiologist (Tr. 57) and not a

family physician like Dr. Bonlie. Thus, the ALJ’s reliance upon the

opinion of the State physician is in error.

(Doc. 12, p. 9).

Regarding Dr. Bermudez, Defendant argues:

The medical opinion of expert state agency radiologist Minda

Bermudez, M.D., who carefully reviewed Plaintiff’s medical records to

date – including the x-rays and MRI that Plaintiff references (Pl.’s Br.

At 7) – concluded that Plaintiff could perform light work with

additional limitations (Tr. 18, 54-58). State agency medical consultants

are highly qualified physicians who are “experts in the evaluation of the

medical issues in disability claims under the Act.” Social Security

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Ruling (SSR) 96-6p, 1996 WL 374180, at *2 (S.S.A.). In appropriate

circumstances, opinions from state agency physicians may be entitled

to greater weight than the opinions of treating physicians. Id.; 20 C.F.R.

§ 404.1527(e); Brown v. Astrue, 649 F.3d 193, 196 (3d Cir. 2011);

Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991) (upholding ALJ’s

rejection of treating physician evidence in part based on non-examining

state agency consultant opinions). This Circuit has explicitly

recognized that an ALJ may rely on the opinion of a state agency

reviewing physician. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356,

361 (3d Cir. 2011) (citing SSR 96-6p and noting that “State agency

opinions merit significant consideration as well.”).

As the ALJ explained and as Dr. Bermudez memorialized, “the

treatment record between the September 9, 2016 alleged onset date and

the December 31, 2016 date last insured consists of several primary

care provider visits showing essentially unremarkable physical

examination results” (Tr. 18, 57). Dr. Bermudez examined Plaintiff’s

activities of daily living, x-rays, MRIs, medication treatment, and other

factors to conclude that Plaintiff was not disabled (Tr. 54, 57). The

moderate limitations and light work “more than amply” accommodated

any abnormalities that could be gleaned from the treatment record up

to the alleged onset date (Tr. 18).

(Doc. 13, pp. 7-9).

The ALJ was faced with contrasting opinions from Dr. Bonlie and Dr.

Bermudez. As noted above, the ALJ did not err by assigning Dr. Bonlie’s opinion

“little weight.”

Regarding Dr. Bermudez, the ALJ stated:

The February 6, 2017 opinion of state agency medical consultant,

Minda Bermudez, MD, is given great weight (2A). The moderate

limitations opined by Dr. Bermudez more than amply accommodates

any abnormalities that can be gleaned from the above outlined

treatment record. For example, the treatment record between the

September 9, 2016 alleged onset date and the December 31, 2016 date

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last insured consists of several primary care provider visits showing

essentially unremarkable physical examination results (4F/1; 5F/2;

10F/1). Also, two rheumatology examinations shortly after the date last

insured revealed very little in the form of objective abnormalities

(12F/19-20, 28-29). In addition, treating eye examination supports no

more than the mild limitations expressed by Dr. Bermudez (9F).

(Admin. Tr. 18).

The ALJ concluded that Dr. Bermudez more aptly captured Plaintiff’s RFC.

The ALJ’s assessment of Dr. Bermudez’s opinion is supported by the record. The

ALJ adequately explained the grounds for affording greater weight to the non-

examining doctor’s opinion than the contrasting views of Dr. Bonlie. The ALJ did

not err in its treatment of Dr. Bermudez’s opinion. Remand is not appropriate

regarding the ALJ’s assessment of the medical opinion evidence.

C. WHETHER THE ALJ APPLIED THE WRONG EVIDENTIARY STANDARD IN

EVALUATING PLAINTIFF’S STATEMENTS ABOUT HER SYMPTOMS

Plaintiff argues that the ALJ’s analysis of Plaintiff’s statements about her

symptoms is flawed for three reasons: (1) the ALJ applied a clear and convincing

evidence standard instead of the required preponderance of the evidence standard;

(2) the ALJ erred by not questioning Plaintiff about her treatment motivations and

decisions before drawing a negative inference about Plaintiff’s minimal evidence of

receiving treatment from specialists; and (3) the ALJ erred by citing to Plaintiff’s

activities of daily living to undermine the severity of her symptoms.

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1. Whether the ALJ Applied the Wrong Evidentiary Standard in Evaluating

Plaintiff’s Statements About Her Symptoms

With respect to her contention that the ALJ applied the wrong evidentiary

standard, Plaintiff argues:

In evaluating Carrick’s symptoms, the ALJ stated that her allegations

were “not entirely consistent with the medical evidence and other

evidence in the record”. (Tr. 17) The “not entirely consistent” standard

implies that the ALJ used a clear and convincing evidence standard.

But, an ALJ must decide a case based upon a preponderance of the

evidence standard. Moreover, the ALJ’s decision contains no

discussion of which allegations he found consistent with the record. The

ALJ’s symptom evaluation violates SSR 16-3 which states that ALJs

will consider the consistency of the claimant’s allegations with the

medical and other evidence, but it does not mandate that the claimant’s

allegations be completely consistent with the record. See SSR 16-3p

(“In determining whether an individual is disabled, we consider all of

the individual’s symptoms, including pain, and the extent to which the

symptoms can reasonably be accepted as consistent with the objective

medical and other evidence in the individual’s record”) (emphasis

added).

(Doc. 12, pp. 9-10) (footnote omitted).

Although the Commissioner generally responded that the ALJ’s evaluation of

Plaintiff’s statements about her symptoms was proper, the Commissioner did not

address Plaintiff’s allegation that the ALJ applied the wrong evidentiary standard

when evaluating Plaintiff’s statements about her symptoms. Nonetheless, I am not

persuaded that the ALJ’s use of the phrase “not entirely consistent with the medical

evidence and other evidence in the record,” suggests that the ALJ applied a clear and

convincing evidence standard.

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The Commissioner’s regulations define “symptoms” as the claimant’s own

description of his or her impairment. 20 C.F.R. § 404.1502(1); SSR 96-4p, 1996 WL

374187. A symptom, however, is not a medically determinable impairment, and no

symptom by itself can establish the existence of such an impairment. SSR 96-4p,

1996 WL 374187. The ALJ is not only permitted, but also required, to evaluate the

credibility of a claimant’s statements about all symptoms alleged and must decide

whether and to what extent a claimant’s description of his or her impairments may

be deemed credible. In many cases, this determination has a significant impact upon

the outcome of a claimant’s application, because the ALJ need only account for those

symptoms – and the resulting limitations – that are credibly established when

formulating his or her RFC assessment. Rutherford v. Barnhart, 399 F.3d 546, 554

(3d Cir. 2005). To facilitate this difficult analysis, the Commissioner has devised a

two-step process that must be undertaken by the ALJ to evaluate a claimant’s

statements about his or her symptoms.

First, the ALJ must consider whether there is an underlying medically

determinable impairment that can be shown by medically acceptable clinical and

laboratory diagnostic techniques that could reasonably be expected to produce the

symptom alleged. 20 C.F.R. § 404.1529(b). If there is no medically determinable

impairment that could reasonably produce the symptom alleged, the symptom

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cannot be found to affect the claimant’s ability to do basic work activities. 20 C.F.R.

§ 404.1529(b); SSR 96-4p, 1996 WL 374187; SSR 16-3p, 2016 WL 1119029.

Second, the ALJ must evaluate the intensity, persistence, and limiting effects

of the symptoms which can be reasonably attributed to a medically determinable

impairment. 20 C.F.R. § 404.1529(c)(1). Symptoms will be determined to reduce a

claimant’s functional capacity only to the extent that the alleged limitations and

restrictions “can reasonably be accepted as consistent with the objective medical

evidence and other evidence.” 20 C.F.R. § 404.1529(c)(4). However, an ALJ will

not reject statements about the intensity, persistence, or limiting effects of a

symptom solely because it is not substantiated by objective evidence. 20 C.F.R. §

404.1529(c)(3). Instead, the ALJ will evaluate the extent to which any

unsubstantiated symptoms can be credited based on the following factors: the

claimant’s daily activities; the location, duration, frequency, and intensity of the

claimant’s pain or other symptoms; the type, dosage, effectiveness, and side effects

of any medication the claimant takes or has taken to alleviate his or her pain or other

symptoms; any treatment, other than medication, the claimant receives or has

received for relief of his or her pain or other symptoms; any measures the claimant

uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your

back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any

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other factors concerning functional limitations and restrictions due to pain or other

symptoms. 20 C.F.R. § 404.1529(c)(3).

An ALJ’s findings based on the credibility of a claimant are to be accorded

great weight and deference since an ALJ is charged with the duty of observing a

witness’s demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL

288246, at *9 (E.D. Pa. Mar. 7, 2000) (quoting Walters v. Comm’r of Soc. Sec., 127

F.3d 525, 531 (6th Cir. 1997)). An ALJ is not free to discount a claimant’s statements

about his or her symptoms or limitations for no reason or for the wrong reason.

Rutherford, 399 F.3d at 554.

As noted above, the Commissioner’s regulations merely require that a

claimant’s symptoms be “reasonably”—as opposed to entirely—consistent with

objective medical evidence to be credited. Plaintiff argues that the ALJ applied the

wrong standard based on his use of popular boilerplate “not entirely consistent”

language. Nonetheless, I am not persuaded by Plaintiff’s argument that use of this

boilerplate phrase requires remand in this case. Similar arguments involving bad

boilerplate have been raised in this court, and in others across the country. Courts

have generally concluded that the use of “bad boilerplate” in an ALJ’s evaluation of

a claimant’s statements does not automatically undermine or discredit an ALJ’s

ultimate conclusion. Ronald B. v. Saul, No. 18-CV-5881, 2019 WL 3778070 at *5

(N.D. Ill. Aug. 12, 2018). This type of error is harmless so long as the ALJ points to

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information that justifies his or her conclusion. Id. Although the ALJ’s in Ronald B.

was ultimately remanded because the ALJ’s “explanation failed to build an ‘accurate

and logical bridge’ between the evidence and her conclusions,” that certainly is not

the case here. As noted above, the ALJ relied on the unremarkable findings in the

medical opinions and Plaintiff demonstrated ability to conduct daily activities.

Accordingly, I find that the ALJ’s use of bad boilerplate in his credibility assessment

does not require remand in this case.

2. Plaintiff’s Additional Arguments Regarding Plaintiff’s Statements About

Her Symptoms

I note that Plaintiff raises two additional arguments regarding the ALJ’s

evaluation of Plaintiff’s symptoms. Plaintiff argues that ALJ improperly (1) found

that the record contained minimal evidence of Plaintiff receiving specialist treatment

during the relevant period; and (2) cited to Plaintiff’s activities of daily living to

undermine the severity of her symptoms. I address these remaining arguments

together.

First, Plaintiff argues that the ALJ’s statement regarding Plaintiff’s lack of

specialist treatment was improper. In his decision, the ALJ stated: “The record has

minimal evidence the claimant received specialist treatment during the relevant

period.” (Admin. Tr. 18).

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Second, Plaintiff argues that the ALJ erred by citing to Plaintiff’s daily living

activities when assessing Plaintiff’s statements about her symptoms and limitations.

In his decision, the ALJ summarized Plaintiff’s statements about her

symptoms and limitations:

The claimant argues she is unable to work because she has constant

muscle and joint pain, fatigue, constant exhaustion, and she can no

longer stand for any length of time or sit for extended periods of time.

She claims her pain keeps her up, and she has difficulty lifting,

squatting, bending, standing, walking, sitting, kneeling, seeing, and

climbing stairs. The claimant states she must rest a couple minutes after

walking 50 yards. She insists she can only shower or dress two to three

times a week (Hearing Testimony; 1E; 9E; 11E; 16E).

(Admin. Tr. 17).

In his decision, the ALJ explained:

After careful consideration of the evidence, the undersigned finds that

the claimant’s medically determinable impairments could reasonably

be expected to cause the alleged symptoms; however, the claimant’s

statements concerning the intensity, persistence and limiting effects of

these symptoms are not entirely consistent with the medical evidence

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

decision.

Id.

The ALJ then proceeded to summarize the evidence he relied on in

discounting Plaintiff’s statements regarding her symptoms.

The Court’s review of the ALJ’s decision reveals that the ALJ fully explained

his rationale for discounting Plaintiff’s testimony regarding the severity of her

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symptoms and limitations. This assessment is firmly grounded in the objective

medical evidence of record. Both of Plaintiff’s arguments regarding the ALJ’s

assessment of Plaintiff’s subjective complaints about her symptoms and limitations

fail. Any error on these issues would be harmless. Remand is not required for further

consideration of Plaintiff’s testimony about her symptoms and limitations or the

ALJ’s treatment of her statements.

V. CONCLUSION

For the reasons stated herein, Plaintiff’s request for the award of benefits, or

in the alternative a new administrative hearing will be DENIED as follows:

(1) The final decision of the Commissioner will be AFFIRMED.

(2) Final judgment will be issued in favor of Andrew Saul, Commissioner

of Social Security.

(3) An appropriate order shall follow.

Date: June 22, 2020 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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