Gonzalez Valentin v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AYDIL V. GONZALEZ, :

:

Plaintiff, : No. 3:19-cv-01482

:

v. : (SAPORITO, M.J.)

:

ANDREW SAUL,1 :

Commissioner of :

Social Security, :

:

Defendant. :

MEMORANDUM

This is an action brought under 42 U.S.C. §405(g), seeking judicial

review of the Commissioner of Social Security’s (“Commissioner”) final

decision denying Aydil V. Gonzalez (“Gonzalez”) claim for disability

insurance benefits under Title II of the Social Security Act. The parties

have consented to the jurisdiction of the undersigned United States

Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(c) and

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.

Rule 73 of the Federal Rules of Civil Procedure. (Doc. ___, Doc. ___, Doc.

____). For the reasons stated herein, we AFFIRM the decision of the

Commissioner.

I. Background and Procedural History

Gonzalez is an adult individual born June 4, 1981, who was 34

years old at the time of her alleged onset date of disability—January 13,

2016. (Tr. 1150, 1280). Gonzalez’s age at the onset date makes her a

“younger person” under the Social Security Act. See 20 C.F.R. §

404.1563(c). Gonzalez is a high school graduate and completed her

associate degree in 2006 in Puerto Rico. (Tr. 1105, 1274). Additionally,

Gonzalez has past relevant work experience, working as a telemedic

nurse and a registered nurse in Puerto Rico. (Tr. 1107-08). On September

26, 2016, Gonzalez protectively filed for disability benefits pursuant to

Title II of the Social Security Act. (Tr. 44). In her application, Gonzalez

alleged that she became disabled beginning January 13, 2006, as a result

of severe persistent asthma, bronchitis, high blood pressure, diabetes,

sleep apnea, depression, anxiety, and severe morbid obesity. (Tr. 1273).

Gonzalez’s claim was initially denied on March 20, 2017. (Tr. 44).

Thereafter, Gonzalez filed a timely request for an administrative hearing

on August 1, 2017, and it was granted. (Id.). Gonzalez, represented by

counsel, appeared and testified before ALJ, Lawrence J. Neary, on

August 28, 2018, in Harrisburg, Pennsylvania. (Tr. 1098). In addition, an

impartial vocational expert (“VE”), Sheryl Bustin, also appeared and

testified during the administrative hearing. (Tr. 44, 1098). At the time of

the hearing, Gonzalez was 37 years old and resided with her family in

Lebanon, Pennsylvania. (Doc. 11, at 7).

In a written decision dated November 8, 2018, the ALJ denied

Gonzalez’s application for benefits. (Tr. 44). Gonzalez sought review of

her claims by the Appeals Council of the Office of Disability Adjudication

and Review, but her request was denied for review on August 14, 2019.

(Tr. 1). Gonzalez subsequently filed an appeal to this court on August 26,

2019, arguing that the ALJ’s decision was not supported by substantial

evidence. (Doc. 1). On November 1, 2019, the Commissioner filed his

answer, in which he maintains that the ALJ’s decision was correct and

in accordance with the law and regulations. (Doc. 4, at 4). This matter

has been fully briefed by the parties and is ripe for decision. (Doc. 11, Doc.

12).

On this score, Gonzalez’s treatment history discloses that Gonzalez

has a history of physical and mental health conditions, including asthma,

bronchitis, high blood pressure, diabetes, sleep apnea, obesity,

depression, and anxiety. (Tr. 49). The medical record reflects that

Gonzalez underwent imaging of her lumbar and cervical spines. (Id.). The

results revealed limited abnormal findings, including degenerative disc

disease and osteoarthritis at multiple levels, but overall the degenerative

changes were “mild” and “slight.” (Tr. 1403-36, 1437-85, 1523-25). The

medical record also reveals that Gonzalez suffers from radiculopathy, as

Gonzalez frequently complained of radiating pain in her legs and upon

examination, exhibited left-sided paraspinal tenderness with positive

straight leg raise testing indicative of pain in her legs. (Tr. 1765-1899).

Gonzalez further describes numbness and weakness, particularly in her

left leg, and reported in April 2018 that she had begun using a cane to

take the pressure off her back. (Tr. 1729-64). Gonzalez, however,

indicated some positive response to medication, and reported that

epidural steroid injections provided 60 percent pain relief in her back and

resolution of her leg pain. (Tr. 1729-64, 1765-1899).

In February 2017, in Puerto Rico, Gonzalez was examined by Dr.

Fernando Torres-Santiago (“Dr. Torres-Santiago”). (Tr. -1526-30). Upon

examination, Gonzalez complained of backaches that derived from the

wear and tear of her working years. (Tr. 1526). Gonzalez stated that she

experienced poor relief with the uses of common pain killer pills and

muscle relaxants, and that her medical conditions affected her activities

of daily living. (Id.). Dr. Torres-Santiago noted, however, that Gonzalez

did not use a walking aid; that her gait and station was normal; and that

she showed no signs of limb or joint pain. (Tr. 1528). Additionally, Dr.

Torres-Santiago noted minimal abnormal findings. (Id.). For example,

Gonzalez exhibited moderate trapezius muscle spasms, but adequate

range of motion in her cervical spine, and that Gonzalez demonstrated

discomfort with flexion-extension of her lumbar spine at 60 degrees, with

evidence of paravertebral muscle spasms. (Tr. 1529).

In April 2018, Gonzalez visited WellSpan Health. (Tr. 1749).

During the examination, Gonzalez complained of severe pain, rated as

10/10, located at the lumbosacral spine. (Id.). Gonzalez described her pain

as aching, sharp, with pressure that occurs constantly. (Id.). Gonzalez

indicated that the symptoms were exacerbated by standing, walking, and

movement of limb. (Id.). Other associated symptoms included weakness,

sensitivity to touch, and sleep disturbance. (Id.). Upon examination,

however, Gonzalez’s lumbar paraspinals and facet joints were tender to

palpation on the left and she had limited range of motion in the lumbar

spine particularly with flexion, and an increase in left-sided low back

pain with straight leg raise testing. (Tr. 50).

As for Gonzalez’s asthma, the medical record reflects that Gonzalez

suffers from recurrent symptoms that can be expected to limit her

extreme tolerance. For example, Gonzalez complained of exacerbation of

her symptoms on various occasions, reporting cough, shortness of breath,

and chest tenderness. (Tr. 1437-85, 1556-66, 1585-98). However, the

frequency of asthma-related hospitalization is not corroborated in the

record. Further, objective medical testing of record demonstrates

minimal abnormal findings. For example, in February 2017, spirometry

testing showed a normal forced vital capacity (FVC) and forced expiratory

volume (FEV). (Tr. 1548-53). Additionally, during Gonzalez’s February

2017 consultative examination, Gonzalez exhibited no rales or wheezing,

and no laborious breathing. (Tr. 1529). Moreover, while Gonzalez

exhibited wheezing in an April 2017 examination, Gonzalez’s respiratory

function was normal upon examination in November 2017. (Tr. 50).

Gonzalez further reported in a May 2018 examination that she was only

experiencing mild breathing issues, with off and on wheezing and chest

tightness. (Tr. 1926-27).

Based upon Gonzalez’s physical impairments, the State agency

medical consultants for the initial and reconsideration determinations

opined that Gonzalez could perform work at the light exertional level

involving frequent postural maneuvers and no concentrated exposure to

extreme temperatures, wetness, humidity, and pulmonary irritants. (Tr.

1140-42; 1157-59).

As for Gonzalez’s mental impairments, the medical record reflects

that Gonzalez’s mental health treatment has been fairly routine, with

few significant abnormalities during mental status examinations, and

good reported response to medication. (Tr. 1567, 1691-1728, 100-07). For

example, Gonzalez has occasionally demonstrated diminished

concentration, anxiety, or irritable moods, but has reported functioning

well at home with no side effects from her medication. (Tr. 1567, 1691-

1728, 100-07). In February 2017, Gonzalez was examined by Dr. Marisol

Santiago (“Dr. Santiago”). (Tr. 1535-45). Upon examination, Dr. Santiago

noted that Gonzalez was cooperative, appropriately dressed, but

appeared anxious with some anger, and was crying during the interview.

(Tr. 1541). Gonzalez revealed that she was upset that her medical

conditions prevent her from working and helping her husband with the

household expenses. (Tr. 1544). Despite her depressed and anxious

appearance, Dr. Santiago noted limited abnormal findings. (Tr. 1540-43).

For example, Gonzalez’s speech was normal, she repeated a group of

objects out of order, and could recall only three out of five objects after a

five-minute delay. (Tr. 1541-43). Additionally, Dr. Santiago noted that

while Gonzalez presented with signs and symptoms of depression, and

complained of physical symptoms from obesity, chronic asthma, and vocal

dysfunction, Gonzalez exhibited an adequate intellectual capacity to

solve problems; she was able to interact socially with others; and she was

capable of managing money. (Tr. 1544).

Based upon Gonzalez’s mental health impairments, the State

agency consultants for the initial and reconsideration determinations,

opined that Gonzalez had no severe mental impairments, with no more

than mild limitations in any of the “paragraph B” functional areas. (Tr.

1130-44, 1146-60).

II. Legal Standards

When reviewing the denial of disability benefits, the Court’s review

is limited to determining whether those findings are supported by

substantial evidence in the administrative record. See 42 U.S.C. § 405(g)

(sentence five); Id. § 1383(c)(3); 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 (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). In an adequately developed factual record,

substantial evidence may be “something less than the weight of the

evidence, and the possibility of drawing two inconsistent conclusions

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

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

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

is supported by substantial evidence the court must scrutinize the record

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

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

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

disabled is supported by substantial evidence and was reached based

upon a correct application of the relevant law. See Arnold v. Colvin, No.

3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has

been held that an ALJ’s errors of law denote a lack of substantial

evidence.”) (alterations omitted); Burton v. Schweiker, 512 F. Supp. 913,

914 (W.D. Pa. 1981) (“The [Commissioner]’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 . . . .”).

To receive disability benefits, a claimant must demonstrate an

“inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A); Id. § 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a); Id.

§ 416.905(a). To satisfy this requirement, a claimant must have a severe

physical or mental impairment2 that makes it impossible to do his or her

previous work or any other substantial gainful activity3 that exists in the

national economy. 42 U.S.C. § 423(d)(2)(A); Id. § 1382c(a)(3)(B); 20 C.F.R.

§ 404.1505(a); Id. § 416.905(a).

The Commissioner follows a five-step sequential evaluation process

in determining whether a claimant is disabled under the Social Security

Act. 20 C.F.R. § 404.1520(a); Id. § 416.920(a). Under this process, the

Commissioner must determine, in sequence: (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 (4) whether the claimant is able to do past

relevant work, considering his or her residual functional capacity

2 A “physical or mental impairment” is an impairment resulting from

“anatomical, physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory diagnostic

techniques.” 42 U.S.C. § 423(d)(3); Id. § 1382c(a)(3)(D).

3 “Substantial gainful activity” is work that (1) involves performing

significant or productive physical or mental duties, and (2) is done (or

intended) for pay or profit. 20 C.F.R. § 404.1510; id. § 416.910.

4 An extensive list of impairments that warrant a finding of disability

based solely on medical criteria, without considering vocational criteria,

is set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1.

(“RFC”);5 and (5) whether the claimant is able to do any other work,

considering his or her RFC, age, education, and work experience. Id.

§ 404.1520(a); Id. § 416.920(a). The claimant bears the initial burden of

demonstrating a medically determinable impairment that prevents him

or her from doing past relevant work. 42 U.S.C. § 423(d)(5); Id.

§ 1382c(a)(3)(H)(i); 20 C.F.R. § 404.1512; Id. § 416.912; Mason, 994 F.2d

at 1064. Once the claimant has established at step four that he or she

cannot do past relevant work, the burden then shifts to the Commissioner

at step five to show that jobs exist in significant numbers in the national

economy that the claimant could perform consistent with his or her RFC,

age, education, and past work experience. 20 C.F.R. § 404.1512(f); Id.

§ 416.912(f); Mason, 994 F.2d at 1064.

III. Discussion

In his November 2018, decision denying Gonzalez’s claim for

benefits, the ALJ evaluated Gonzalez’s application for benefits at each

5 “Residual functional capacity” is the most a claimant can do in a work

setting despite the physical and mental limitations of his or her

impairment(s) and any related symptoms (e.g., pain). 20 C.F.R.

§ 404.1545(a)(1); id. § 416.945(a)(1). In assessing a claimant’s RFC, the

Commissioner considers all medically determinable impairments,

including those that are not severe. Id. § 404.1545(a)(2); id.

§ 416.945(a)(2).

step of the sequential evaluation process. In that decision, the ALJ first

concluded that Gonzalez had met the insured status requirements of the

Social Security Act through December 31, 2021. (Tr. 46). At step one, the

ALJ concluded that Gonzalez had not engaged in substantial gainful

activity since January 13, 2016, the alleged onset date. (Id.). At step two,

the ALJ found that the following impairments were medically

determinable and severe during the relevant period: obesity, asthma,

diabetes, osteoarthritis, degenerative disc disease with radiculopathy,

cervicalgia, myofascial pain syndrome, moderate recurrent major

depression, and unspecified anxiety disorder. (Id.).

At step three, the ALJ found that Gonzalez 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, during the relevant period. (Tr. 47-48). Between

steps three and four, the ALJ fashioned an RFC considering Gonzalez’s

limitations from her impairments:

After careful consideration of the entire record, the

undersigned finds that [Gonzalez] has the [RFC] to perform

sedentary work as defined in 20 C.F.R. 404.1567(a) with the

following nonexertional limitations: [Gonzalez] can

occasionally perform postural activities; [Gonzalez] can have

no exposure to extreme heat, extreme cold, wetness, humidity,

fumes, odors, dusts, gases, and hazards such as machinery

and unprotected heights; [Gonzalez] can perform simple,

routine tasks involving no interaction with the public and only

occasional interaction with supervisors and coworkers.

(Tr. 48).

At step four, the ALJ found that Gonzalez had past relevant work

experience working as a telemetric nurse and a registered nurse. (Tr. 51).

At step five, the ALJ determined that based on Gonzalez’s age, education,

work experience, and RFC that there were a significant number of jobs

in the national economy that she could perform, including working as a

carding machine operator, final assembler, and dowel inspector. (Tr. 52).

Gonzalez contends that the decision of the ALJ is not supported by

substantial evidence of record and raises four issues on appeal attacking

various aspects of the ALJ’s decision. We shall address each argument

seriatim.

A. Substantial Evidence Supports the ALJ’s RFC Assessment

Gonzalez’s first claim of error, challenges the ALJ’s RFC

assessment. (Doc. 11, at 13-16). Specifically, Gonzalez argues that the

ALJ limited her to an RFC of sedentary work, which requires an

individual to stand or walk for no more than two hours in an eight-hour

workday. (Doc. 11, at 13).6 Gonzalez contends that the RFC does not

include any additional functional limitations to reflect her actual

limitations, which derive from her physical impairments. (Id.). Gonzalez

asserts that her physical impairments do not permit her to stand or walk

for two hours in an eight-hour workday as required under the sedentary

RFC. (Id.). Thus, Gonzalez argues that the sedentary RFC is not

supported by the record. (Id.). Gonzalez further contends that there were

no competent medical opinions upon which the ALJ properly relied in

formulating the RFC. (Id.).

Lastly, Gonzalez argues that the ALJ erroneously denied her

request to leave the record open. Gonzalez argues:

[At] the time of the hearing [Gonzalez] requested that the

record be left open following the hearing to submit records

6 The regulations define sedentary work as involving lifting no more than

ten pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers, and small tools. Although sitting is involved, a

certain amount of walking and standing is often necessary in carrying

out job duties. Jobs are sedentary if walking and standing are required

“occasionally” and other sedentary criteria are met. 20 C.F.R.

404.1567(a); see also SSR 83-10p, 1983 WL 31251 at *5. By definition,

“occasionally” means occurring from very little up to one-third of the

time. Since being on one’s feet is required “occasionally” at the sedentary

level of exertion, periods of standing or walking should generally total no

more than about two hours of an eight-hour workday, and sitting should

generally total approximately six hours of an eight-hour work-day. SSR

83-10p, 1983 WL 31251 at *5.

regarding two upcoming surgeries, and despite the fact that

these would be occurring shortly after the hearing, the ALJ

denied [Gonzalez’s request] to leave the record open, stating

that the ALJ would expect that [Gonzalez] would recover from

these surgeries in less than one year. (Admin Tr. 1101). This

assumption by the ALJ as to the relevance of medical evidence

not yet of record, as well as his assumption that [Gonzalez]

will recover in a certain period of time, is an abuse of

discretion by the ALJ, who should have left the record open to

accept evidence. As the nature of the surgeries was to address

conditions noted to be severe by the ALJ, the records clearly

may have been relevant, particularly if there were

complications following the surgeries.

(Doc. 11, at 15).

In response, the Commissioner argues that the ALJ correctly

considered all of Gonzalez’s impairments and reasonably assessed an

RFC that was substantially supported by the evidence of record. (Doc. 12,

at 12). The Commissioner further contends that the ALJ did not abuse

his discretion by refusing to leave the record open until after her

surgeries. (Doc. 12, at 11). The Commissioner avers that Gonzalez did not

submit her evidence timely and the ALJ reasonably concluded, based on

her counsel’s proffer, that it was not likely to alter his decision. Therefore,

the Commissioner contends that the ALJ did not abuse his discretion.

The ALJ—not treating or examining physicians or State agency

consultants—must make the ultimate disability and RFC

determinations. Chandler v. Comm’r of Soc. Sec., 667 F.3d at 356, 361

(3d Cir. 2011). 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) (quoting

Hartranft v. Apfel, 181 F.3d 358, 359(3d Cir. 1999)). It reflects the most

that an individual can still do, despite his or her limitations, and is used

at steps four and five to evaluate the claimant’s case. 20 C.F.R. §§

404.1520, 404.1545; SSR 96-8P, 1996 WL 374184 at *2. In assessing the

RFC, the ALJ must consider all the evidence of the record and, regardless

of its source, “evaluate every medical opinion . . . receive[d].” Burnett, 220

F.3d at 121 (internal citations omitted). The Court’s “review of the ALJ’s

assessment of the [claimant]’s RFC is deferential,” and the “RFC

assessment will not be set aside if it is supported by substantial

evidence.” Black v. Berryhill, No. 16-1768, 2018 WL 4189661 at *3 (M.D.

Pa. Apr. 13, 2018); see also Martin v. Comm’r of Soc. Sec., 547 F. App’x

153, 160 (3d Cir. 2013) (“We examine the ALJ’s conclusions as to a

claimant’s RFC with the deference required of the substantial evidence

standard of review.” (internal quotation marks omitted)).

Here, we find that substantial evidence supports the ALJ’s RFC

assessment. In crafting the RFC, the ALJ considered all of Gonzalez’s

physical and mental health impairments, including Gonzalez’s obesity,

asthma, diabetes, osteoarthritis, degenerative disc disease with

radiculopathy, cervicalgia, and myofascial pain syndrome. The ALJ

explained, however, that despite evidence of severe physical and mental

health impairments, the objective medical evidence revealed limited

abnormal findings. For example, while imaging of Gonzalez’s lumbar and

cervical spines revealed degenerative disc disease and osteoarthritis at

multiple levels, the overall degenerative changes were “mild” and

“slight.” (Tr. 1403-36, 1437-85, 1523-25). Further, the ALJ explained that

while the medical record revealed that Gonzalez suffered from

radiculopathy, as Gonzalez described numbness and weakness,

particularly in her left leg, the medical record also revealed that Gonzalez

experienced some positive response to medication, and that epidural

steroid injections provided 60 percent pain relief in Gonzalez’s back and

resolution of her leg pain. (Tr. 1729-64, 1765-1899). Moreover, upon

physical examinations it was noted that Gonzalez exhibited moderate

trapezius muscle spasms, but adequate range of motion in her cervical

spine; that she did not use a walking aid; that her gait and station was

normal; and that she showed no signs of limb or joint pain. (Tr. 1528).

As for her asthma, the medical record demonstrated that Gonzalez

complained of exacerbation of her symptoms on various occasions,

reporting cough, shortness of breath, and chest tenderness. (Tr. 1437-85,

1556-66, 1585-98). The ALJ explained, however, that the frequency of

Gonzalez’s asthma-related hospitalizations were not corroborated in the

record and that the medical record demonstrated minimal abnormal

findings. For example, in February 2017, spirometry testing showed a

normal forced vital capacity (FVC) and forced expiratory volume (FEV);

during her February 2017 consultative exam, Gonzalez exhibited no rales

or wheezing, and no laborious breathing; and during a May 2018

examination, Gonzalez only reported experiencing mild breathing issues,

with off and on wheezing and chest tightness. (Tr. 50, 1437-85, 1529,

1548-53, 1556-66, 1585-98, 1926-27).

With regard to Gonzalez’s mental health impairments, the ALJ

explained that the medical record reflected that Gonzalez’s mental health

treatment was fairly routine, with few significant abnormalities during

mental status examinations, and that Gonzalez had reported good

response to medication. (Tr. 1567, 1691-1728, 100-07). The ALJ further

explained that while the medical record demonstrated that Gonzalez

presented signs and symptoms of depression, and complained of physical

symptoms from obesity, chronic asthma, and vocal dysfunction, Gonzalez

exhibited an adequate intellectual capacity to solve problems; she was

able to interact socially with others; and she was capable of managing

money. (Tr. 1544).

The ALJ also considered the opinion evidence of record in

formulating the RFC. (See Admin. Tr. 50-51). With regard to Gonzalez’s

physical impairments, the ALJ considered the opinions of State agency

medical consultants, Dr. Pedro Nieves (“Dr. Nieves”) and Dr. Rafael

Queipo (“Dr. Queipo”). (Tr. 50). Both physicians opined that Gonzalez

was capable of performing work at the light exertional level, involving

frequent postural maneuvers and no concentrated exposure to extreme

temperatures, wetness, humidity, and pulmonary irritants. (Tr. 1140-42;

1157-59). The ALJ, however, afforded the opinions of Drs. Nieves and

Queipo “partial” weight, concluding that while their opinions reflected

appropriate areas of limitation, they did not reflect the full extent of

Gonzalez’s limitations. (Tr. 50).

With regard to Gonzalez’s mental health impairments, the ALJ

considered the opinions of State agency psychological consultants, Dr.

Jesus Soto (“Dr. Soto”) and Dr. Zulma Nieves (“Dr. Z. Nieves”) and

accorded their opinions “little” weight. (Tr. 50-51). Dr. Soto and Dr. Z.

Nieves both opined that Gonzalez had no severe mental impairments,

with no more than mild limitation in any of the “paragraph B” functional

areas. (Tr. 1139-40, 1155-56). The ALJ assigned “little” weight to the

opinions of Drs. Soto and Z. Nieves, concluding that their opinions were

not consistent with the evidence of record, which was sufficient in

establishing more than minimal difficulties related to Gonzalez’s mental

impairments. (Tr. 50-51).

Lastly, the ALJ considered other evidence in crafting the RFC,

including Gonzalez’s own statements. For example, Gonzalez testified

that she could not sit longer than 30 minutes due to her pain, that she

uses a rescue inhaler approximately four times per day, that she could

not continue working in Puerto Rico as she was missing a lot of work due

to her health issues, and that she has required the use of a cane since at

least November 2017. (Tr. 1105, 1109, 1112-1118). However, despite

alleging disabling symptoms stemming from her physical and mental

impairments, Gonzalez described her daily activities in terms that were

not wholly disabling. For example, Gonzalez reported that she could care

for most of her personal needs; she washes clothes with the help of her

family; she prepares meals for her husband and children; she drives; she

goes grocery shopping and goes to church; she is capable of paying bills,

and handling a checking account; she watches television and listens to

music; and she spends time with her family. (Tr. 1305-12, 1539-44).

Gonzalez argues that the ALJ erroneously limited her to an RFC of

sedentary work because she is unable to stand or walk for two hours in

an eight-hour workday as required under the sedentary work RFC. (Doc.

11, at 13). Gonzalez contends that the sedentary RFC fails to include any

additional functional limitations that account for her physical

impairments. (Id.). Gonzalez further contends that there are no

competent medical opinions upon which the ALJ properly relied in

formulating the RFC. (Id.). The Court is not persuaded by Gonzalez’s

arguments as to this issue. At the outset, the ALJ carefully considered

the evidence of record. The ALJ, however, was confronted by a record

marked with contrasting evidence, and inconsistencies regarding

Gonzalez’s abilities and limitations. Reconciling the discordant and

conflicting threads of evidence, the ALJ confined Gonzalez to an RFC of

sedentary work with additional limitations to address her impairments.

(Tr. 48). It is the right and responsibility of the ALJ to make such

assessments and we find that substantial evidence supported the ALJ’s

decision as to this matter.

Additionally, while Gonzalez argues that the RFC does not include

any additional functional limitations to adequately account for her

physical impairments, Gonzalez fails to indicate the functional

limitations that should have been included in the RFC or what evidence

the ALJ failed to consider. Moreover, Gonzalez contends that there were

no competent medical opinions upon which the ALJ properly relied in

crafting the RFC. However, we find that Gonzalez’s contentions on this

score are without merit. As mentioned above, the ALJ properly

considered the opinion evidence of record and assigned “partial” weight

to the opinions of Drs. Nieves and Queipo and assigned “little” weight to

the opinions of Drs. Soto and Z. Nieves. (Tr. 50-51). In doing so, the ALJ

provided valid reasons for his evaluations and based his conclusions on

substantial evidence. Thus, the Court finds no basis for disturbing the

ALJ’s determination on this matter.

Lastly, Gonzalez argues that the ALJ erroneously denied her

request to leave the record open to submit records concerning her two

upcoming surgeries. We disagree. As correctly asserted by the

Commissioner, Gonzalez did not submit her evidence timely. Thus, the

ALJ reasonably concluded, based on her counsel’s proffer, that leaving

the record open for submission of additional evidence pertaining to her

upcoming surgeries, would not likely alter his decision. See 20 C.F.R. §

404.935.

Further, it is longstanding precedent in this jurisdiction “that

evidence not presented to the [ALJ] should not be reviewed by the district

court nor be the basis of remand to the Commissioner, unless the

evidence is ‘new’ and ‘material,’ and there is ‘good cause’ [for the

claimant] not having produced the evidence earlier.” Matthews v. Apfel,

239 F.3d 589, 590 (3d Cir. 2001). Here, as correctly stated by the

Commissioner, Gonzalez has offered no specific argument as to how her

post-hearing submission is ‘new,’ ‘material,’ relates to the relevant

period, and creates a reasonable probability that it would change the

outcome of her case. (Doc 11, at 11-16). Thus, this evidence cannot be

used to challenge the ALJ’s decision on substantial evidence grounds.

To reiterate, this Court is not now tasked with revisiting these

factual issues, and we may not substitute our judgment of that of the

ALJ. Instead, we are limited to determining whether the ALJ provided

valid reasons for his evaluations and based his conclusions on substantial

evidence. Thus, finding that the ALJ provided adequate articulation for

these determinations which were grounded in substantial evidence, the

Court finds no basis for disturbing the ALJ’s determination on this issue.

B. Substantial Evidence Supports the ALJ’s Step Two

Evaluation and Any Alleged Error is Harmless on These

Facts

Gonzalez’s next claim of error, challenges the ALJ’s step two

evaluation. (Doc. 11, at 19). Specifically, Gonzalez argues that the

medical record confirms that she suffers from a number of conditions not

considered to be severe by the ALJ, including her sleep apnea, erosive

gastritis, diverticulitis, neuropathy in her hands and feet, lysis of

adhesions, and ovarian cysts. (Doc. 11, at 17). Gonzalez alleges that these

conditions cause more than a ‘slight limitation’ with regard to her

activities of daily living. Gonzalez contends:

[The] fact that the ALJ considered these disorders to be non-

severe in nature, and the fact that he offered little discussion

regarding these disorders, is further confirmation that the

ALJ did not consider these disorders, or limitations related

thereto, in setting forth [Gonzalez’s] RFC . . . these conditions

should have been considered to be severe, as they have more

than a minimal effect upon [Gonzalez], and should have been

factored into her RFC. Even if the ALJ had not considered

these conditions to be severe, they should have been

considered and analyzed by the ALJ, as even limitations from

non-severe impairments need to be considered in setting forth

a claimant’s RFC.

(Doc. 11, at 18-19).

In response, the Commissioner argues that the ALJ correctly

considered all of Gonzalez’s impairments and reasonably assessed an

RFC that was substantially supported by the evidence of record. (Doc. 12,

at 12). The Commissioner further contends that while the record contains

evidence that these impairments existed during the relevant time period,

there is no evidence of resulting significant work-related limitations as

averred by Gonzalez. (Doc. 12, at 14).

At step-two of the sequential analysis, the ALJ determines whether

a claimant has a medically severe impairment or combination of

impairments. Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987). An

impairment is considered severe if it “significantly limits an individual’s

physical or mental abilities to do basic work activities. 20 C.F.R.

404.1520(c). An impairment is severe if it is “something beyond a slight

abnormality or a combination of slight abnormalities which would have

no more than a minimal effect on an individual’s ability to work.” McCrea

v. Comm’r of Soc. Sec., 370 F.3d at 357, 360 (3d Cir. 2004) (quoting SSR

85-28, 1985 WL 56856 (1985)). The Court of Appeals is clear that the

step-two inquiry is a de minimis screening device used to cast out

meritless claims. McCrea, 370 F.3d at 360; Newell v. Comm’r of Soc. Sec.,

347 F.3d 541, 546 (3d Cir. 2003). The burden is on the claimant to show

that an impairment qualifies as severe. Bowen, 482 U.S. at 146.

Applying the above standard, we find that the ALJ’s step two

evaluation is supported by substantial evidence. At step two, the ALJ

considered all of Gonzalez’s alleged impairments, including her severe

persistent asthma, bronchitis, high blood pressure, diabetes, sleep apnea,

depression, anxiety, and severe morbid obesity. The ALJ concluded,

however, that through the date last insured, Gonzalez had the following

severe impairments: obesity, asthma, diabetes, osteoarthritis,

degenerative disc disease with radiculopathy, cervicalgia, myofascial

pain syndrome, moderate recurrent major depression, and unspecified

anxiety disorder. (Tr. 46). The ALJ then concluded that Gonzalez had the

following nonsevere impairments: sleep apnea, erosive gastritis, and

gastroesophageal reflux disorder (GERD). (Id.). In forming this

determination, the ALJ considered Gonzalez’s treatment records and

testimony concerning her activities of daily living, as mentioned above.

(See Admin Tr. 49-51). The ALJ, however, found that these impairments

did not significantly limit Gonzalez’s physical or mental abilities to

perform basic work activities. (Id.). The ALJ explained that while all of

these conditions were nonsevere, he considered all of Gonzalez’s severe

and nonsevere impairments in crafting the RFC. (Id.). The ALJ further

explained that in crafting the RFC, he included the appropriate

exertional and nonexertional limitations to adequately address all of

Gonzalez’s severe and nonsevere impairments. (Tr. 46-47).

Gonzalez argues that the ALJ should have found her diverticulitis,

neuropathy in her hands and feet, lysis of adhesions, and ovarian cysts

to be severe impairments. However, Gonzalez never alleged that these

impairments limited her ability to work. Moreover, the ALJ did not deny

Gonzalez’s claim at step two of the sequential evaluation process.

Therefore, it is not necessary for the ALJ to have specifically found any

additional alleged impairments to be severe because the ALJ considered

the effects of these impairments at steps three through five of the

sequential evaluation process. See Naomi Rodriguez v. Berryhill,

No.1:18-CV-684, 2019 WL 2296582, at *10 (M.D. Pa. May 30, 2019)(citing

cases); see also Salles v. Comm’r of Soc. Sec., 229 Fed. Appx 140, 145 (3d

Cir. 2007). Thus, any possible error at step two of the sequential

evaluation process is harmless.

Hence, contrary to Gonzalez’s contentions, the ALJ considered her

impairments at step two of the sequential evaluation process, and

continued to consider them throughout this process in crafting the

sedentary work RFC. It appears that Gonzalez is requesting that this

Court re-weigh the evidence. This we may not do. See, Rutherford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (“In the process of reviewing

the record for substantial evidence, we may not ‘weigh the evidence or

substitute our own conclusions for those of the fact-finder.”’ (quoting

Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992))). Because we

cannot re-weigh the evidence, we find the ALJ has not erred at step two

of the sequential evaluation process.

C. Substantial Evidence Supports the ALJ’s Consideration

of the Opinion Evidence of Record

Next, Gonzalez argues that the ALJ erred in formulating the RFC

assessment by assigning to much weight to the opinions of Drs. Nieves

and Queipo, State agency medical consultants, and Drs. Soto and Z.

Nieves, State agency psychological consultants. (Doc. 11, at 19).

Specifically, Gonzalez contends:

The exertional limitations set forth by the ALJ in many ways

mirror those provided in the Disability Determination

Transmittal, regarding [Gonzalez’s] exertional limitations at

the time of the initial claim. It is important to note that the

ALJ makes no reference to any medical opinions of record,

from a CE, ME, or treating source, in setting forth his

discussion in his decision regarding his rendering of

[Gonzalez’s] RFC. (See ALJ decision, generally). Regarding

the lack of any opinion of record which the ALJ relied upon

regarding [Gonzalez’s] exertional limitations, it is well

established that “rarely can a decision be made regarding a

claimant’s [RFC] without an assessment from a physician

regarding the functional abilities of the claimant. (Doak v.

Heckler, 790 F.2d 26, 29 (3d Cir. 1986). (“No physician

suggested that the activity Doak could perform was consistent

with the definition of light work set forth in the regulations,

and therefore the ALJ’s conclusion that he could is not

supported by the record.”). The only opinions of record in this

matter, which were relied upon by the ALJ, are from State

agency physicians, who never examined [Gonzalez].

(Doc. 11, at 22).

In response, the Commissioner argues that the ALJ did not rely on

the State agency reviewing medical consultants to assess Gonzalez’s

RFC. The Commissioner avers that the ALJ accorded “partial” weight to

the opinions of Drs. Nieves and Queipo, and accorded “little” weight to

the opinions of Drs. Soto and Z. Nieves. (Doc. 12, at 15). Thus, the ALJ

did not rely exclusively on these opinions to assess Gonzalez’s RFC. (Id.).

The Commissioner further contends that the ALJ is entitled to rely on

the opinions provided by State agency reviewing medical consultants.

The law is clear, “[s]tate agency physicians and psychologists are

considered to be ‘highly qualified physicians and psychologists who are

also experts in Social Security disability evaluations.” Poulos v. Comm’r

of Soc. Sec., 474 F.3d 88, 96 (3d Cir. 2007).

Further, the ALJ—not treating or examining physicians or State

agency consultants—must make the ultimate disability and RFC

determinations. Chandler, 667 F.3d at 361. In crafting the RFC, the ALJ

must consider all the evidence of record, including medical signs and

laboratory findings, daily activities, medical source statements, and a

claimant’s medical history. SSR 96-8p, 1996 WL 374184, at *5; see also

Mullin v. Apfel, 79 F. Supp. 2d 544, 548 (E.D. Pa. 2000). Upon considering

the opinion evidence of record, the ALJ is charged with a duty to evaluate

all the medical opinions in the record under the factors set forth in the

regulations and to resolve any conflicts. 20 C.F.R. § 404.1527. An ALJ

may give an opinion less weight or no weight if it does not present

relevant evidence or a sufficient explanation to support it, or if it is

inconsistent with the record as a whole. 20 C.F.R. § 404.1527(c). The ALJ

may choose which medical evidence to credit and which to reject as long

as there is a rational basis for the decision. Plummer, 186 F.3d at 429.

Here, we find that substantial evidence supports the ALJ’s

consideration of the opinion evidence of record. In crafting the RFC, the

ALJ considered the opinions of Drs. Nieves, Queipo, Soto, and Z. Nieves.

With regard to Gonzalez’s physical impairments, Drs. Nieves and Queipo

both opined for the initial and reconsideration determinations that

Gonzalez could perform work at the light exertional level involving

frequent postural maneuvers and no concentrated exposure to extreme

temperatures, wetness, humidity, and pulmonary irritants. (Tr. 1140-42;

1157-59). The ALJ, however, accorded the opinions of Drs.

Nieves and Queipo “partial” weight. (Tr. 50). The ALJ reasoned that

while their opinions reflected appropriate areas of limitation, their

opinions did not reflect the full extent of Gonzalez’s limitations. (Id.).

Thus, the ALJ accorded the opinions of Drs. Nieves and Queipo “partial”

weight.

As for her mental health impairments, the ALJ considered the

opinions of Drs. Soto and Z. Nieves and accorded their opinions “little”

weight. (Tr. 50-51). Both Drs. Soto and Z. Nieves opined for the initial

and reconsideration determinations that Gonzalez had no severe mental

impairments, with no more than mild limitations in any of the

“paragraph B” functional areas. (Tr. 1139-40, 1155-56). The ALJ accorded

Drs. Soto and Z. Nieves opinions “little” weight. The ALJ reasoned that

the opinions of Drs. Soto and Z. Nieves were not consistent with the

evidence of record, which was sufficient in establishing more than

minimal difficulties related to Gonzalez’s mental health impairments.

(Tr. 50-51). Thus, the ALJ accorded the opinions of Drs. Soto and Z.

Nieves “little” weight.

Gonzalez argues that the medical record lacks a proper medical

opinion from a medical examiner, consultative examiner, and treating

source. She concludes that the RFC is not supported by substantial

evidence because the ALJ had no proper medical opinion upon which to

rely. We disagree. As correctly asserted by the Commissioner, “[s]tate

agency physicians and psychologists are considered to be ‘highly qualified

physicians and psychologists who are also experts in Social Security

disability evaluations.’” Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 96 (3d

Cir. 2007). Further, as mentioned above, the ALJ—not treating or

examining physicians or State agency consultants—bears the exclusive

duty in making the ultimate disability and RFC determinations.

Chandler, 667 F.3d at 361. In fulfilling this responsibility, there is no

legal requirement that a physician have made the particular findings

that an ALJ adopts in the course of determining an RFC. Titterington v.

Barnhart, 174 Fed. App’x 6, 11 (3d Cir. 2006).

Therefore, because the ALJ provided valid reasons for his

evaluations and based his conclusions on substantial evidence, we find

that the ALJ did not err in weighing the opinion evidence of record.

D. The ALJ Did Not Err in His Consideration of Plaintiff’s

Use of a Cane in Crafting the RFC

Gonzalez’s final contention challenges the ALJ’s consideration of

her use of a cane in formulating the RFC. (Doc. 11, at 23-24). Specifically,

Gonzalez argues that the ALJ made a finding in his decision that she

used a cane for her upper dominant extremity to walk and stand. (Doc.

11, at 23). However, the ALJ offered no mention of her use of a cane to

walk and stand in the RFC. (Id.). Gonzalez contends that the ALJ

confined her to an RFC of sedentary work, which means she must engage

in walking and standing up to a combined one-third of the workday. (Id.).

Thus, Gonzalez contends that to perform work at the sedentary

exertional level, she would need a cane to walk or stand due to issues

with both her lower and upper extremities, which would render her

incapable of gainful employment. (Doc. 11, at 24).

As mentioned above, in assessing a claimant’s RFC, the ALJ must

consider all the evidence of the record, including medical signs and

laboratory findings, daily activities, medical source statements, and a

claimant’s medical history. SSR 96-8p, 1996 WL 374184, at *5; see also

Mullin v. Apfel, 79 F. Supp. 2d 544, 548 (E.D. Pa. 2000). However, “[t]o

find that a hand-held assistive device is medically required, there must

be medical documentation establishing the need for a hand-held assistive

device to aid in walking or standing, and describing the circumstances

for which it is needed.” SSR 96-9, 1996 WL 374185 at *7.

In this case, reviewing the record as a whole, we find that the ALJ

properly considered Gonzalez’s use of a cane in crafting the RFC. As

correctly asserted by Gonzalez, the ALJ noted in his decision that

Gonzalez uses a cane to take the pressure off her back. (See Admin. Tr.

49). Despite not appearing with or using an assistive device at her

administrative hearing, the ALJ nevertheless considered Gonzalez’s

testimony that she uses a cane to effectively ambulate. (See Admin. Tr.

1103).

Also, while Gonzalez testified that she requires an assistive device

to aid her in walking and/or standing, she fails to identify any medical

documentation establishing the need for a hand-held assistive device.

Therefore, because we find that Gonzalez has failed to carry her burden,

we find no basis for disturbing the ALJ’s determination on this matter.

An appropriate Order follows.

Dated: August 27, 2020 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge