Opinion

Diaz v. Saul

Court
District Court, M.D. Pennsylvania
Filed
Mar 26, 2021
Cited by
0 cases
Authority
More cited than 29.1%

“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)

How later courts described this case

  • “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)
  • “Form reports in which a physician’s obligation is only to check a box or fill in a blank are weak evidence at best . . . . [w]here these so-called reports are unaccompanied by thorough written reports, their reliability is suspect.”
  • “[T]he court has plenary review of all legal issues . . . .”
  • “The [Commissioner]’s determination as to the status of a claim requires the correct application of the law to the facts.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MAGDALENA DIAZ,

Plaintiff, CIVIL ACTION NO. 3:20-cv-00265

v. (SAPORITO, M.J.)

ANDREW SAUL,

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 Magdalena Diaz’s (“Diaz”) claim for disability insurance

benefits under Title II and XVI 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 Rule

73 of the Federal Rules of Civil Procedure. (Doc. 10).

For the reasons stated herein, we will affirm the decision of the

Commissioner.

I. Background and Procedural History

Diaz, is an adult individual, born on November 10, 1966. (Tr. 94).

Diaz was forty-eight years of age at the time of her alleged onset of

disability, which made her a “younger person” under the Commissioner’s

regulations whose age generally does not affect her ability to adjust to

other work. Subsequently, Diaz transitioned to the age category of “closely

approaching advanced age.”

On March 1, 2017, Diaz protectively filed her application for benefits

under Titles II and XVI of the Social Security Act. In both applications, she

alleged that she became disabled on July 18, 2015. (Tr. 75). Diaz’s alleged

impairments included: right shoulder and neck pain, two spurs in neck

and shoulder, major depressive disorder, anxiety, high blood pressure,

high cholesterol, degenerative disc disease, personality disorder, and

headaches. (Tr. 214). Her claims were initially denied on June 30, 2017.

On July 28, 2017, Diaz filed a written request for an administrative

hearing. Her request was granted. On September 4, 2018, Diaz appeared

and testified at a hearing before Administrative Law Judge (“ALJ”) Randy

Riley, in Harrisburg, Pennsylvania. Diaz was represented at the hearing

by Jason Schibinger, Esquire. Additionally, Vocational Expert (“VE”) Paul

A. Anderson also appeared and testified. (Tr. 75, 93).

On November 23, 2018, the ALJ issued an unfavorable decision in

which he concluded that, considering Diaz’s age, education, work

experience, and residual functional capacity, and based on the testimony of

the vocational expert, Diaz was capable of making an adjustment to other

work that exists in significant numbers in the national economy. (Tr. 85).

Diaz then filed a timely complaint on February 13, 2020, in this court.

(Doc. 1). The Commissioner’s timely answer to the complaint was filed

April 16, 2020. (Doc. 4).

This matter has been fully briefed by the parties and is ripe for

decision. (Docs. 13 and 14).

II. Statement of Facts

At the time of the hearing, Diaz lived with her husband in Lebanon,

Pennsylvania, which is in the Middle District of Pennsylvania. She has a

high school education. (Tr. 94).

At her administrative hearing, Diaz stated that she was a

housekeeper when she injured herself in 2010. (Tr. 105). Diaz stated she

needs help from her husband to get dressed. She is able to shower on her

own, but needs help washing her hair because of impairment to her hand,

neck and shoulder movement. (Tr. 95). She stated that she does not cook

or shop in stores, and only washes her own dishes. She is unable to

vacuum or take out the trash. (Tr. 96). She stated that she does not have

a driver’s license and her daughter drives her where she needs to go. (Tr.

96).

Diaz is able to climb stairs, bend over and touch her toes. She is able

to squat with pain in her neck and shoulders. (Tr. 96). She stated that

she would be able to walk two blocks before having to sit down, and she

could stand for ten minutes before having to sit down due to pain in her

neck and shoulder. She stated she could sit for 10 to 15 minutes before

having to get up. (Tr. 97). Diaz stated she suffers from right hip pain.

(Tr. 101).

Diaz stated that her medications cause drowsiness and cluelessness

to the point where she is unable to concentrate. (Tr. 98). She stated that

she lies down during the day because sitting and standing for long periods

of time causes her pain. (Tr. 99). She is unable to lift or carry heavy items

with her right hand because of the pain in her right shoulder. (Tr. 99-100).

She stated her neck pain is worse on the right side and her pain is in her

right shoulder. (Tr. 100-03).

Diaz stated that she had neck surgery to ablate the nerves in her

neck. She stated she continues to have pain, and on a scale of one to ten,

her pain is a ten. She stated that it has not improved since the surgery.

(Tr. 101). She tried physical therapy and injections for the pain, to no

avail. (Tr. 102). She had left wrist surgery for carpal tunnel syndrome

and stated that the surgery did not help. She continues to wear a brace

every day. (Tr. 102-03). In addition, Diaz stated she had physical therapy

on her left hand and wrist which did not help. (Tr. 103). She stated her

pain is in her right shoulder. (Tr. 103). Diaz stated that from when she

wakes up to going to bed, she lays down almost all day. (Tr. 111).

Diaz stated that she does not go anywhere on a regular basis other

than to the grocery store with her husband and to doctor appointments.

She no longer goes to church because she would need to sit down. (Tr.

104). Diaz stated that her daughter helps her clean, sweep and mop the

floors. (Tr. 104).

Diaz stated that she sees a therapist, Simrit Kahlon, and a

psychiatrist, Felicia DeJesus, M.D., every other week for depression. (Tr.

105-06). At the time of the administrative hearing, Diaz’s medications

were Latuda and Trintellix. She stated she has panic attacks

approximately two times per month that last approximately one-half hour.

She stated she has trouble sleeping due to pain. She suffers with crying

spells three times a week due to depression. (Tr. 107-08). She stated she

hears voices that scare her, has feelings of helplessness, hopelessness, and

irritability, has racing thoughts, negative thoughts, thoughts of harming

herself, and issues with memory, concentration, and focus. (Tr. 108-09).

She has trouble following written or verbal instructions and she has

nightmares and flashbacks of when her grandfather abused her. (Tr. 110).

I. Standard of Review

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 impairment1 that makes it impossible to do his or her

previous work or any other substantial gainful activity2 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

1 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).

2 “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.

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;3 (4) whether the claimant is able to do past relevant

work, considering his or her residual functional capacity (“RFC”);4 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

3 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.

4 “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).

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.

IV. Discussion

a. The ALJ’s decision denying Diaz’s claim for disability.

In his November 23, 2018, written decision denying Diaz=s claims,

the ALJ found that Diaz meets the insured status requirements of the

Social Security Act through June 30, 2017. (Tr. 78). At step one, the ALJ

found that Diaz had not engaged in substantial gainful activity since July

18, 2015, her alleged onset date. (Tr. 78). At step two, the ALJ found that

Diaz had the following medically determinable severe impairments:

degenerative disc disease, degenerative joint disease of the right shoulder

and left wrist; depression; anxiety; and personality disorder. (Tr. 78). At

step three, the ALJ found that Diaz does 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.

Between steps three and four of the sequential evaluation process,

the ALJ assessed Diaz=s RFC. After evaluating the relevant evidence of

record, the ALJ found that Diaz had the RFC to perform light work as

defined in 20 C.F.R. '' 404.1567(b) and 416.967(b), with the following

limitations

She can frequently stoop, kneel, crouch, and climb

ramps and stairs. She can occasionally climb

ladders, ropes, or scaffolds and perform fine

manipulation with her left upper extremity. She

has the mental capacity for work limited to simple

routine repetitive tasks in a work environment free

from fast paced production involving only simple

work-related decisions with few, if any, workplace

changes. She can occasionally interact with

supervisors.

(Tr. 80).

In making his factual findings with respect to Diaz=s RFC, the ALJ

was required to evaluate all symptoms and to the extent to which these

symptoms can reasonably be accepted as consistent with the objective

medical evidence and other evidence, based on the requirements of 20

C.F.R. '' 404.1529 and 416.929 and Social Security Ruling 16-3p, and the

ALJ also considered the medical opinions in accordance with the

requirements of 20 C.F.R. §§ 404.1527 and 416.927.

At step four of the five-step process, the ALJ determined that Diaz

was unable to perform her past relevant work as a janitor which is

actually and generally performed at the medium exertional level. Diaz’s

RFC is now limited to less than a full range of light work. Therefore, she

is unable to perform her past relevant work as actually or generally

performed. 20 C.F.R. §§ 404.1565, 416.965.

It is the claimant who bears the initial burden of proving the

existence of a disability. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Rossi

v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). Once the claimant has

established at step four that she cannot do any work she has done in the

past because of her impairments, the burden shifts to the Commissioner at

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

economy which the claimant could perform consistent with her RFC, age,

education, and past work experience. Rossi, 602 F.2d at 57.

According to the testimony given by the vocational expert, a

significant number of jobs exist in the national economy for an individual

of Diaz’s age, education, work experience, and RFC as determined by the

ALJ. (Tr. 20, 83). After considering the testimony by the VE, the ALJ

determined that Diaz would be able to perform the requirements of

representative occupations such as: conveyor line bakery worker, DOT

#524.687-022, with 38,000 jobs available nationally; bottling line

attendant, DOT # 920.687-042, with 61,000 jobs available nationally; and

cashier II, DOT # 211.462-010 with 750,000 jobs available nationally. (Tr.

85). The above listed occupations are classified as unskilled work at the

light exertional level. (Tr. 85).

Based on this information, the ALJ concluded that Diaz could engage

in work that existed in significant numbers in the national economy

despite her medically determinable impairments.

b. Substantial Evidence Supports the ALJ’s RFC Assessment.

Diaz’s first claim of error challenges the ALJ’s RFC assessment.

Specifically, Diaz argues that the ALJ failed to consider the limitations for

her determined severe impairments. (Doc. 13, at 11).

The Court of Appeals has ruled that 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 356, 361 (3d Cir. 2011). The RFC is a function-by-function

assessment based upon all of the relevant evidence of an individual’s

ability to do work-related activities despite the limitations caused by his or

her impairment(s). 20 C.F.R. § 404.1545(a); see also Burnett v. Comm’r of

Soc. Sec., 220 F.3d at 112, 121 (3d Cir. 2000). In determining 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. Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *5;

see also Mullin v. Apfel, 79 F. Supp. 2d 544, 548 (E.D. Pa. 2000). An ALJ’s

RFC findings must be supported by the medical evidence. Doak v. Heckler,

790 F.2d 26, 28 (3d Cir. 1986). The ALJ, however, is only required to

include limitations credibly established by the medical evidence and not

every limitation alleged. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d

Cir. 2005).

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)).

Diaz contends that the ALJ failed to consider the documented and

diagnosed issues regarding her mental health. The ALJ acknowledged

Diaz’s difficulty with remembering, completing tasks, concentrating,

following instructions, handling stress, changes in routine, and noted that

Diaz testified to hearing voices and having crying spells. (Tr. 81). He

noted the treatment records show largely benign mental status findings,

including good eye contact, normal speech, concrete and coherent thought

process, good cognition and memory, and normal behavior, insight, and

judgment. (Tr. 82, 540, 553, 673, 675, 677, 679, 681, 683, 685, 687, 689,

691, 726, 740, 754, 782, 789, 799, 805, 832). In addition, he noted that the

record lacks evidence that Diaz ever received inpatient mental health

treatment or referral to crisis intervention, and that her daily activities

were inconsistent with her subjective complaints. He noted that she is

able to attend to her personal hygiene, prepare meals, walk to medical

appointments, watch television, and manage money, and she has no

difficulty with social interaction. (Tr. 82-84).

With regard to her panic attacks, Diaz testified that she has panic

attacks, but the ALJ pointed out that there is only one mention of panic

attacks in the medical records that were before the ALJ. Moreover, that

October 2016 treatment note stated that Diaz denied panic attacks. (Tr.

535).

The ALJ reviewed and noted the record evidence of Felicia DeJesus,

M.D., and Simnt Kahlon, PA-C, who stated that Diaz had mild limitations

with understanding and memory, moderate limitations with sustained

concentration and persistence, moderate limitations with social

interaction, and moderate limitations with adaptation. (Tr. 657-58, 813-

15).

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

considered the opinion of state agency psychological consultant Emmanuel

Schnepp, Ph.D., and afforded his opinion “partial” weight. (Tr. 83). Dr.

Schnepp opined that Diaz had no severe limitations in understanding,

remembering, or applying information; mild limitations interacting with

others, or adapting or managing herself, and moderate limitations

concentrating, persisting, or maintaining pace. (Tr. 83).

Although the ALJ found that Diaz had moderate limitations in all of

the “paragraph B” functional areas, her impairments did not cause at least

two “marked” limitations or one “extreme” limitation. Thus, the paragraph

B criteria were not satisfied.

Additionally, the treatment notes that Diaz cites were submitted

after the ALJ’s decision. The ALJ pointed out that Diaz submitted or

informed the ALJ about additional evidence less than five business days

before the scheduled hearing date. The ALJ declined to admit this

evidence as the requirements of §§ 404.935(b) and 416.1435(b) were not

met. The Court can only look at evidence that was actually before the ALJ

in determining whether the ALJ’s decision was supported by substantial

evidence. Diaz is relying on untimely produced evidence that was not

before the ALJ for decision. In this case, Diaz has made no attempt to

demonstrate that this evidence is new, material, or that there is good

cause for us to remand for consideration of it.

It is the claimant’s burden to provide “some justification for the

failure to acquire and present such evidence to the [ALJ].” Szubak v. Sec’y

Health & Hum. Servs., 745 F.2d 831, 833 (3d Cir. 1984) (per curiam). Diaz

has not offered any valid justification for her failure to acquire this

evidence and present it to the ALJ. Accordingly, Diaz has failed to satisfy

the statutory requirements for a sentence six remand. Thus, we are

precluded from considering the additional evidence.

With regard to Diaz’s physical impairments, the ALJ considered the

opinions of state agency medical consultants, Josie Henderson, M.D. (Tr.

82). Dr. Henderson opined that Diaz was capable of performing work at

the light exertional level, involving frequent stooping, kneeling, crouching,

climbing ramps and stairs, and occasionally climbing ladders, ropes, or

scaffolds. The ALJ afforded the opinion great weight as it is consistent

with Diaz’s activities of daily living. The ALJ concluded that while the

opinion reflected appropriate areas of limitation, the ALJ found that Diaz

is slightly less limited to occasional fine manipulation with her upper left

extremity. (Tr. 82)

In crafting the RFC, the ALJ considered all of Diaz’s physical and

mental health impairments, including Diaz’s non-severe impairments of

carpal tunnel syndrome, plantar fasciitis, achilles tendonitis,

hyperglycemia, hypertension, and gastro esophageal reflux disease. The

ALJ explained, however, that despite evidence of mental health

impairments, the medical evidence revealed that Diaz has the capacity for

work limited to simple routine repetitive tasks in a work environment free

from fast-paced production involving only simple work-related decisions

with few, if any, workplace changes and she can occasionally interact with

supervisors. (Tr. 82).

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

including Diaz’s own statements. For example, Diaz stated in her Function

Report that she could not work because of the pain in her shoulder and

neck. She has difficulty sleeping, lifting, squatting, bending, standing,

reaching, kneeling, and climbing stairs. She must rest for a minute or two

after walking two blocks, can stand for ten minutes, sit for ten to fifteen

minutes, lays most of the day and has pain in both of her arms. (Tr. 354-

61). However, despite alleging disabling symptoms stemming from her

physical and mental impairments, Diaz described her daily activities in

terms that were not wholly disabling. For example, Diaz reported that she

could care for most of her personal needs; she could prepare simple meals,

ride in cars, walk to medical appointments, and watch television. (Tr. 354-

61).

Here, we find that the ALJ’s RFC assessment is supported by

substantial evidence.

c. The ALJ did not err in failing to consider Diaz’s

non-severe impairments.

At step two of the five-step sequential evaluation process, the ALJ

must determine whether a claimant has a medically determinable

impairment or a combination of impairments that is severe. 20 C.F.R. §§

404.1520(a), 416.920(a). An impairment or combination of impairments is

severe if it significantly limits a claimant’s physical or mental ability to do

basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ must

“consider an individual’s symptoms and functional limitations to

determine whether his or her impairment(s) is severe unless the objective

medical evidence alone establishes a severe medically determinable

impairment or combination of impairments.” Soc. Sec. Ruling 16-3p, 2017

WL 5180304, at *11 (eff. Mar. 28, 2016). The ALJ must “evaluate the

intensity and persistence of an individual’s symptoms such as pain and

determine the extent to which an individual’s symptoms limit his or her

ability to perform work-related activities.” Rescission of Social Security

Rulings 96-3p and 96-4p, 83 Fed. Reg. 27,816 (June 14, 2018).

It is well-established that 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 356,

361 (3d Cir. 2011). Further, where the ALJ’s decision in a social security

disability benefits case is explained in sufficient detail to allow meaningful

judicial review and the decision is supported by substantial evidence, a

claimed error may be deemed harmless. Richards, 223 F. Supp. 3d at 304.

Typically, any error in failing to find a severe impairment at step two

would be a “harmless error” if the ALJ continued with the analysis,

proceeding on to step three, as he did here. See Salles v. Comm’r of Soc.

Sec., 229 Fed. App’x 140, 145 n.2 (3d Cir. 2007). Regardless, we find that

the ALJ did not err in failing to find Diaz’s tarsal tunnel syndrome,

planter fasciitis, achilles tendonitis, right hip pain, and neck pain non-

severe. The ALJ carefully considered the medical record in its entirety.

The ALJ did find and discuss Diaz’s degenerative disc disease of the

cervical spine (the cause of her neck pain) severe. (Tr. 78). We note that

the records before the ALJ contained no records of hip pain during the

relevant period. The only mention of hip pain was during the

administrative hearing. (Tr. 101). Diaz points out in her brief the ongoing

hip pain, but the ALJ found no medical records confirming ongoing hip

pain.

The ALJ discussed Diaz’s left foot pain and pointed out that she had

surgery prior to the relevant period along with physical therapy. (Tr. 78).

Diaz reported on May 4, 2016, at a follow up for her heel pain that she was

a year out from her left tarsal release, Baxter’s nerve release, and plantar

fasciectomy and that she continued to have some pain but was 90% better.

She was happy with her results and had been able to do all of her normal

activities. She had little to no pain in that area. Notes show that she was

advised that she could return to normal activities and she could return on

as as-needed basis.

The claimant bears the burden of presenting “medical findings

equivalent in severity to all the criteria for the one most similar

impairment” in order to qualify for benefits through a showing that an

impairment, or combination of impairments, is equivalent to a listed

impairment. Sullivan v. Zebley, 493 U.S. 521, 531 (1990). An impairment,

no matter how severe, is not sufficient if it only meets or equals some of

the criteria for a listed impairment. Id. Meeting or equaling a listing

cannot be proven solely on the basis of a diagnosis. 20 C.F.R. §§

404.1525(d), 416.925(d).

20 C.F.R. Part 404, Subpart P, Appendix 1, lists descriptions of the

severity of impairment for each major body system that is considered to be

severe enough to prevent a claimant from doing any gainful activity

regardless of the claimant’s age, education, or work experience. 20 C.F.R.

§§ 404.1525(a), 416.925(a). At step three of the sequential evaluation

process, the ALJ considers whether the combination of the claimant’s

medically determinable impairments meets or equals the severity of one of

the impairments in this listing of impairments. 20 C.F.R. §§

404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant has an impairment that

meets the twelve-month durational requirement, and meets or equals all

the criteria of an impairment in the listing of impairments, the claimant is

found disabled. Id.

d. The ALJ properly considered all treating source

statements and the opinions.

Diaz argues that the ALJ erred by failing to properly consider her

treating source statements, and opinion of the consultative physician

compared to the opinion of the state agency consultant. (Doc. 13 at 2).

There are two categories of medical source opinions: “acceptable

medical sources” and “other sources.” 20 C.F.R. §§ 404.1513, 416.913.

Only an acceptable medical source can qualify as a “treating source.” 20

C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). “Medical opinions are statements

from acceptable medical sources that reflect judgments about the nature

and severity of [the claimant’s] impairment[s], including [ ] symptoms,

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

impairment[s], and [ ] physical or mental restrictions.” 20 C.F.R. §§

404.1527(a)(1), 416.927(a)(1). A treating source’s medical opinion will be

afforded controlling weight if it “is well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in [the] case record.” 20 C.F.R. §§

404.1527(c)(2), 416.927(c)(2). However, “[o]pinions on some issues . . . are

not medical opinions . . . but are, instead, opinions on issues reserved to

the Commissioner because they are administrative findings that are

dispositive of a case.” 20 C.F.R. § 404.1527(d), 416.927(d). An opinion that

the claimant is disabled is explicitly noted in the regulations as an

example of such an opinion that is reserved to the Commissioner. 20

C.F.R. §§ 404.1527(d)(1). 416.927(d)(1) (“A statement by a medical source

that you are ‘disabled’ or ‘unable to work’ does not mean that we will

determine that you are disabled.”).

It is well-established that the ALJ, not the treating or examining

physicians or state agency consultants, must make the ultimate disability

and RFC determinations. Slotcavage v. Berryhill, No. 3:18-CV-1214, 2019

WL 2521634, at *8 (M.D. Pa. June 3, 2019). Thus, where the opinion of the

treating physician conflicts with that of other sources, the ALJ may choose

whom to credit but “cannot reject evidence for no reason or for the wrong

reason.” Id. Furthermore, the ALJ must indicate in his decision which

evidence he had rejected and which he is relying on as the basis for his

finding. Id. It is equally clear, that an ALJ may not unilaterally reject all

medical opinions in favor of the ALJ’s own subjective impressions. Id.

Therefore, provided that the decision is accompanied by an adequate

rationale, it is the province and the duty of the ALJ to choose which

medical opinions and evidence deserve greater weight. Id. 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), 416.927(c).

Here, the ALJ afforded “’little weight” to Dr. Sherpa’s physical

residual functional capacity questionnaire as it was a checkbox form.

Checkbox opinions are considered weak evidence at best. See Mason v.

Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (“Form reports in which a

physician’s obligation is only to check a box or fill in a blank are weak

evidence at best . . . . [w]here these so-called reports are unaccompanied by

thorough written reports, their reliability is suspect.”); Smith v. Astrue,

359 Fed. App’x 313, 316 (3d. Cir. 2009); Prokopick v. Comm’r of Soc. Sec.,

272 Fed. App’x 196, 198 (3d Cir. 2008); Long v. Colvin, Civ. No. 1:14-2192,

2016 WL 1320921, at * 9 (M.D. Pa. Apr. 5, 2016). See generally 20 C.F.R. §

404.1527(c)(3) (discussing supportability). This is especially true, where, as

here, the checkbox form contained little, if any, narrative explanation to

support the limitations assessed.

Where no medical opinion is entitled to controlling weight, the

Commissioner’s regulations direct the ALJ to consider the following

factors, where applicable, in deciding the weight given to any non-

controlling medical opinion: length of the treatment relationship and

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

the extent to which the source presented relevant evidence to support his

or her medical opinion, and the extent to which the basis for the source’s

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

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

and any other factors brought to the ALJ’s attention. 20 C.F.R.

§404.1527(c).

Furthermore, the ALJ’s articulation of the weight accorded to each

medical opinion must be accompanied by “a clear and satisfactory

explication of the basis on which it rests.” Cotter, 642 F.2d at 704. This

principle applies with particular force to the opinion of a treating

physician. See 20 C.F.R. § 404.1527(c)(2)(“We will always give good

reasons in our notice of determination or decision for the weight we give

your treating source’s opinion.”). “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)); see also Morales v. Apfel, 225

F.3d 310, 317 (3d Cir. 2000).

Although Dr. Sherpa and Diaz had a long relationship as

physician/patient, the ALJ found that Dr. Sherpa’s opinions were not

supported by his own treatment notes. Regulations and case law are clear

that a treating relationship alone is not enough to compel an ALJ to accord

an opinion controlling weight. See 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2); Brown, 649 F.3d at 197 n.2. To be a “medical opinion”

entitled to “controlling weight,” an opinion must come from a “treating

source,” it must be “well-supported by medically acceptable clinical and

laboratory diagnostic techniques,” and it must be “not inconsistent with

the other substantial evidence in your case record.” 20 C.F.R.

§ 404.1527(a)(2), (c)(2); Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *2.

Under the Social Security regulations in effect at the time of the ALJ’s

decision in this case, a “treating source” is defined as a licensed physician,

psychologist, or other acceptable medical source “who provides you, or has

provided you, with medical treatment or evaluation and who has, or has

had, an ongoing treatment relationship with you.” 20 C.F.R.

§ 404.1527(a)(2); see also id. § 404.1502(a) (defining “acceptable medical

source”). As to what constitutes an “ongoing treatment relationship,” the

regulation states:

Generally, we will consider that you have an ongoing

treatment relationship with an acceptable medical source

when the medical evidence establishes that you see, or

have seen, the source with a frequency consistent with

accepted medical practice for the type of treatment and/or

evaluation required for your medical condition(s). We

may consider an acceptable medical source who has

treated or evaluated you only a few times or only after

long intervals (e.g., twice a year) to be your treating

source if the nature and frequency of the treatment or

evaluation is typical for your condition(s).

Id. § 404.1527(a)(2).

If not well-supported by medically acceptable clinical and diagnostic

techniques or inconsistent with other substantial evidence in the case

record, a treating source medical opinion is nevertheless entitled to

deference. Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *4. Ordinarily, it

will be afforded “great weight.” See id. at *2; Morales v. Apfel, 225 F.3d

310, 317 (3d Cir. 2000). See generally 20 C.F.R. § 404.1527(c) (detailing

factors considered in evaluating weight given to a medical opinion).

Here, the ALJ gave “ little weight” to Dr. Sherpa’s opinion that Diaz

was able to do less than even a full range of sedentary work and “partial

weight” to the opinions of Diaz’s psychiatrist, Felicia DeJesus, M.D., and

Simnt Kahlon, PA-C, both of whom placed Diaz under limitations that,

would have rendered her entirely unemployable. However, these are not

medical opinions, but rather opinions on whether Diaz is disabled, an

issue expressly reserved to the Commissioner. See id. § 404.1527(d)(1);

Dixon v. Comm’r of Soc. Sec., 183 Fed. App’x 248, 251 (3d Cir. 2006)

(“[O]pinions on disability are not medical opinions and are not given any

special significance.”); Snow v. Astrue, Civil Action No. 12-5 Erie, 2013 WL

501377, at *8 (W.D. Pa. Jan. 15, 2013) (“The ultimate determination as to

whether a claimant is disabled is reserved to the Commissioner.”).

“Medical sources . . . sometimes offer opinions . . . about an individual’s

ability to do past relevant work or any other type of work. Because these

are administrative findings that may determine whether an individual is

disabled, they are reserved to the Commissioner. . . . [T]hey can never be

entitled to controlling weight or given special significance.” Soc. Sec.

Ruling 96-5p, 1996 WL 374183, at *5; see also Dixon, 183 Fed. App’x at 252

(finding that treating source opinions stating that a claimant was unable

to do specific jobs “reflected the treating professionals’ opinions on

disability, [and] they were properly afforded no special significance”);

Snow, 2013 WL 501377, at *8 (“Since medical doctors typically lack the

vocational expertise needed to ascertain whether an individual’s

limitations would preclude the performance of specific jobs, their opinions

as to whether a claimant is ‘disabled’ carry little weight. . . . Questions

pertaining to employer expectations are more appropriately addressed by a

vocational expert.”).

Therefore, we find that the ALJ properly considered all treating

source statements and opinions.

e. The ALJ did not err in his consideration of the

Medical-Vocational Guidelines concerning Diaz’s

age.

Lastly, Diaz argues that the ALJ erred by failing to properly consider

the Medical-Vocational Guidelines concerning her age. (Doc. 13, 23-24).

Specifically, Diaz argues that she should have been found disabled as of

the date of her 50th birthday because she is only capable of performing no

more than sedentary work. (Id.)

The ALJ’s findings at steps four and five are based on Diaz’s residual

functional capacity, age, education, and work experience in conjunction

with the Medical-Vocational Guidelines. In order to make this

determination, the ALJ relied upon the VE’s testimony. Here, the VE

testified that given all of the factors, Diaz’s RFC, age, education, and work

experience, Diaz was capable of making a successful adjustment to other

work that existed in significant numbers in national economy. Diaz was

able to perform the requirements of the following occupations: bakery

worker, conveyor line, DOT # 524.687-022, light work, 48,000 jobs

nationally; bottling line attendant, DOT #920.687-042, light work, 61,000

jobs available nationally, and cashier II, DOT # 211.462-010, light work,

with 750,000 jobs available nationally. Because Diaz was able to adjust to

“other work,” the ALJ concluded that Diaz did not meet the statutory

definition of disability under the Social Security Act.

The ALJ posed hypothetical questions to the VE with further

limitations, including being limited to simple, routine, repetitive tasks in a

low-stress job with only occasional decision-making and occasional work-

setting changes, and the VE testified that the same positions would

remain available without any change in numbers. Given all these factors,

the ALJ’s finding that Diaz had the ability to adjust to other work, is

supported by substantial evidence, and is in compliance with the Medical

Vocational Guidelines.

Diaz further contends that the ALJ erred in not considering her

multiple physical impairments and other conditions that the ALJ should

have considered severe in nature. We find that this argument also fails.

Here, we find that the ALJ did not err in his consideration of the

Medical-Vocational Guidelines with respect to Diaz’s age. First, after

consideration of the medical record in its entirety, the ALJ concluded that

Diaz could perform a range of light work, not less than the full range of

sedentary work. (Tr. 80). The ALJ considered Diaz’s age under the

Medical-Vocational Guidelines, coupled with his RFC finding of light work.

(Tr. 39.) For example, the ALJ considered Diaz’s age under two different

age categories, including Rule 202.20 (“younger individual” age 45-49) and

Rule 202.13 (“closely approaching advanced age”), the latter accounting for

Diaz’s age change upon her 50th birthday. (Id.) Under both categories,

however, Diaz would be declared not disabled. (Id.)

Here, we find that the ALJ’s decision appropriately determined that

Diaz’s allegations regarding the limiting effects of her condition were not

supported by the record evidence. The ALJ’s RFC is supported by record

evidence and by Diaz’s own reported activities.

An appropriate Order will follow.

s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

U.S. Magistrate Judge

Dated: March 26, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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