# Carrick v. Berryhill

> District Court, M.D. Pennsylvania · June 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10408890

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** June 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- noting that the scope of review on legal matters is plenary

## Opinion text

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).
Page 12 of 29
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
Page 16 of 29
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

Page 17 of 29
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
Page 18 of 29
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

Page 25 of 29
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).

Page 27 of 29
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
Page 28 of 29
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408890. Public record. Not legal advice.