Quinn v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN FRANCIS QUINN, :

:

Plaintiff, : No. 3:20-cv-00813

:

v. : (SAPORITO, M.J.)

:

ANDREW SAUL, 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 final decision denying

John Francis Quinn’s claim for disability insurance benefits under Title

II of the Social Security Act. This matter has been referred to the

undersigned United States Magistrate Judge on consent of the parties,

pursuant to the provisions of 28 U.S.C. § 636(c) and Rule 73 of the Federal

Rules of Civil Procedure. (Doc. 9; Doc. 10).

For the reasons stated herein, the Commissioner’s decision will be

affirmed.

I. Procedural Background

Quinn is an adult individual born May 3, 1965, who was 51 years

old at the time of his alleged onset date of disability—March 20, 2017.

(Tr. 15). Quinn’s age at the onset date makes him a “person closely

approaching advanced age” under the Social Security Act. See 20 C.F.R.

§ 404.1563(c).

On May 9, 2017, Quinn protectively filed for disability insurance

benefits pursuant under Title II of the Social Security Act. (Tr. 15).

Quinn’s claim was initially denied on July 27, 2017. (Tr. 15). Thereafter,

Quinn filed a timely request for an administrative hearing on August 8,

2017. His request was granted. (Id.). Quinn appeared and testified before

Administrative Law Judge (“ALJ”) Gerry Langan, on September 17,

2018, in Wilkes Barre, Pennsylvania. (Tr. 15, 35). In addition, impartial

vocational expert (“VE”) Patricia Chilleri appeared and testified during

the administrative hearing. (Tr. 15, 52). Robert P. Frantz, Esquire,

represented Quinn throughout the hearing.

On February 5, 2019, the ALJ issued an unfavorable decision in

which he concluded that, after consideration of the entire record, Quinn

has the residual functional capacity to perform light work as defined in

20 CFR § 404.1567(b) with limitations. (Tr. 18). Quinn 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

in which he maintained that the ALJ’s decision was correct and in

accordance with the law and regulations. (Doc. 16). This matter has been

fully briefed by the parties and is ripe for decision. (Doc. 18; Doc. 21).

II. Factual Background

At the time of the hearing, Quinn lived in St. Clair, Pennsylvania,

which is in the Middle District of Pennsylvania. He has a high school

education. (Tr. 38). Quinn has been unable to work since he was involved

in a motor vehicle accident in March 2017. (Tr. 38).

At his administrative hearing, Quinn stated that he was a heavy

equipment operator for most of his life. (Tr. 38). Quinn stated that he

possesses an active CDL license. He worked as a cement truck driver, ran

heavy equipment, drove heavy equipment, and performed lifting up to

200 pounds. (Tr. 41). In addition, he was responsible for cleaning the

tracks and rails of the heavy equipment. (Tr. 42).

Quinn stated that he is unable to stay on his feet more than one-

half hour before he has to sit down. He has pain that radiates from his

lower left back to his lower right back and then into his right hip and

down his right leg. (Tr. 44). Quinn stated that he has tried riding as a

passenger with his brother in the heavy equipment, but he could not do

it because the bouncing in the vehicle was too much for him. (Tr. 44).

Quinn stated he is unable to bend over to pick anything up. (Tr. 44).

Quinn testified that he could walk for a block if he went slow before

having to stop and sit down. (Tr. 45). He stated he uses a cane about 75%

of the time when walking because the cane helps to take the pressure off

his spine and hip. He stated he could sit for one-half hour, depending on

the chair. He stated that he has a reclining chair at home that he is able

to sit on for extended periods of time and he is able to sleep in the chair.

(Tr. 45). He stated that he is most comfortable reclined with his feet up

because it takes the pain away. (Tr. 50). He stated he could lift and carry

ten pounds comfortably. Quinn stated that if he does laundry, he is only

able to come up the stairs once with a laundry basket full of clothes.

Quinn stated that he has a driver’s license and does some driving.

He stated that he got a ride to the hearing because it was too far for him

to drive and especially when he takes his medications, his head gets

fuzzy. (Tr. 47).

Quinn stated that his hobbies included trout fishing for which he

previously travelled all over the United States, but now he is afraid to go

now. (Tr. 48). He stated that he does not have a computer or use the

internet.

Quinn stated he gets approximately three to five hours of sleep a

night and takes naps during the day. (Tr. 48). He stated that the only

side effects from medication is that it puts him in a fog. (Tr. 49). He stated

he uses a TENS unit, but he feels it no longer works as good as it once

did.

Quinn stated that he suffers from a low blood platelets disorder and

his hematologist told him he is a high-risk candidate for any type of

invasive treatment. (Tr. 51). Quinn stated that he did a 12-week

treatment of Harvoni and is now cured of hepatitis C. (Tr. 46).

In a function report dated June 30, 2017, Quinn stated that he is

able to care for his own personal needs and he does not need reminders

to take medication. (Tr. 171-72). He is able to prepare his own meals and

he is able to vacuum, do laundry, and do light mowing. Quinn stated that

he is able to drive and walk on his own, he is able to grocery shop, pay

bills, and handle a checkbook. (Tr. 173). He stated that he enjoys

watching television. He also enjoys fishing and auto racing, but he is

reluctant to go in case he falls. He indicated that he visits his parents

daily and at the time of completion of the function report, he attended

daily physical therapy sessions. Quinn stated that he is able to follow

spoken instruction well, but he has difficulty with written instructions.

He gets along well with authority figures, but his attention is

compromised by his pain level. He is able to handle stress most of the

time and he is able to handle changes in routine. Quinn indicated a fear

of falling when walking. (Tr. 174-76).

III. Legal Standard

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

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.

in determining whether a claimant is disabled under the Social Security

Act. 20 C.F.R. § 404.1520(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

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).

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.

IV. The ALJ’s Decision

In his February 5, 2019, written decision denying Quinn=s claims,

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

Social Security Act through December 31, 2021. (Tr. 17). At step one, the

ALJ found that Quinn had not engaged in substantial gainful activity

since March 20, 2017, his alleged onset date. (Tr. 17). At step two, the

ALJ found that Quinn had the following medically determinable severe

impairments: degenerative disc disease of the lumbar spine,

degenerative joint disease of the cervical spine, hepatitis C, and obesity.

(Tr. 17). At step three, the ALJ found that Quinn 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 Quinn=s RFC. After evaluating the relevant evidence of

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

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

He should avoid unprotected heights. He is able to

frequently climb ramps and stairs, but never climb

ladders, ropes, or scaffolds. He can tolerate

occasional exposure to extreme cold temperatures

and wetness. He should avoid occupations in the

food preparation and heath care industries.

(Tr. 18).

In making his factual findings with respect to Quinn=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 Social Security Ruling 16-3p. The ALJ also

considered the medical opinions and prior administrative medical

findings in accordance with the requirements of 20 C.F.R. §404.1520c.

(Tr. 18).

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

was unable to perform his past relevant work as a heavy equipment

operator in the mining industry, which was classified as medium skilled

work with an SVP of 6 and considered very heavy and heavy exertional

levels as performed by Quinn. His prior job as a concrete truck driver in

the construction industry was SVP of 4 and considered heavy and very

heavy exertional levels as performed by Quinn. As required by Social

Security Ruling 82-62, this work was substantial gainful activity, was

performed long enough for Quinn to achieve average performance and

was performed within the relevant period. The ALJ determined that

Quinn is capable only of performing light work, with additional

limitations as previously described. Therefore, he is unable to perform

his past relevant work as actually or generally performed.

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 he cannot do any work he has done in the

past because of his 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 his 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 Quinn’s age, education, work experience, and RFC as determined by

the ALJ. (Tr. 27, 54). Thus, at step five, after considering the testimony

by the VE, the ALJ determined that Quinn would be able to perform the

requirements of representative occupations such as: warehouse checker,

DOT #222.687-010, with 40,000 jobs available nationally; gasket

inspector, DOT # 739.687-102, with 38,000 jobs available nationally;

marker and labeler, DOT #209.587-034, with 95,000 jobs available

nationally. (Tr. 27). The above listed occupations are all classified as

unskilled work at the light exertional level. (Tr. 27, 54). Based on this

information, the ALJ concluded that Quinn could engage in work that

existed in significant numbers in the national economy despite his

medically determinable impairments.

V. Discussion

The plaintiff contends that the ALJ’s decision denying his claim for

disability benefits is not supported by substantial evidence because the

ALJ erred by failing to accord “controlling weight” to the opinions of two

of Quinn’s treating medical sources, assigning them “little weight”

instead, while at the same time according “great weight” to the prior

administrative medical finding of a DDS medical consultant who did not

examine him. In addition, the plaintiff suggests that the ALJ erred by

failing to acknowledge as a severe impairment a diagnosis of lumbar facet

syndrome recorded by one of his treating physicians.

The ALJ accorded little weight to the opinion of Robert W. Mauthe,

M.D., a board-certified physiatrist5 who examined the plaintiff on two

occasions in March and April 2018.6 Based on these two encounters and

other medical records, and at the request of Quinn’s attorney, Dr. Mauthe

prepared a written report dated May 9, 2018. Dr. Mauthe noted that, at

the time of his most recent examination of the claimant on April 19, 2018,

Quinn had remained symptomatic, despite having received chiropractic

care and physical therapy in the several months following his injury in a

motor vehicle accident. Dr. Mauthe noted that Quinn had been taking

tramadol, he had recently tried Topamax, and he had experienced no

5 A physiatrist is a medical doctor who specializes in physical

medicine and rehabilitation.

6 In his brief, Quinn expressly characterizes Dr. Mauthe as a

treating physician with whom he shared a “longstanding” relationship,

notwithstanding this very limited treatment history. In light of the new

regulations, which eliminated the hierarchical form of review in which

the opinion of a treating physician was entitled to special deference, the

“treating physician” nomenclature in particular is immaterial.

improvement with gabapentin. Physical examination revealed

tenderness in the lumbar spine at L4-5 and L5-S1, with no obvious

weakness. Dr. Mauthe opined that Quinn continued to experience low

back pain due to a “[w]orking diagnosis [of] lumbar facet syndrome

(sprain/strain phenomenon) as a direct result of the trauma sustained”

in the motor vehicle accident, and he had been unable to return to work

due to this severe back pain. Based on the duration of Quinn’s complaints

of low back pain and an inability to receive spinal injection treatments

due to other conditions, Dr. Mauthe opined that Quinn’s impairment was

permanent. Dr. Mauthe recommended functional capacity testing be

conducted, but he did not articulate any functional limitations himself in

his report. (Tr. 661–63). The ALJ assigned “little weight” to Dr. Mauthe’s

opinion, noting that, although he had examined Quinn, the doctor had a

“very short history with the claimant,” his opinion was “not completely

consistent with his own findings, which included lumbar spine

tenderness but no obvious weakness,” and his opinion “did not provide a

specific, function-by-function assessment of the claimant’s ability to

perform work related tasks transferable to a residual functional capacity

assessment for disability purposes.” (Tr. 25).

The plaintiff contends that Dr. Mauthe’s opinion is entitled to

“controlling weight” as a medical opinion by a treating source that is well-

supported by the medical evidence of record. “Prior to March 2017, ALJs

were required to follow regulations which defined medical opinions

narrowly7 and created a hierarchy of medical source opinions with

treating sources at the apex of this hierarchy.” Densberger v. Saul, Civil

No. 1:20-CV-772, 2021 WL 1172982, at *7 (M.D. Pa. Mar. 29, 2021).

Under this prior regulatory scheme, the Social Security Administration

“followed the ‘treating physician rule,’ which required the agency to give

controlling weight to a treating source’s opinion, so long as it was ‘well-

supported by medially acceptable clinical and laboratory diagnostic

techniques’ and not ‘inconsistent with the other substantial evidence’ in

7 Indeed, we note that, under the prior regulations that did permit

assignment of controlling weight to properly supported treating medical

source opinions, PA Mummey’s opinions would have been entitled to

consideration but no special weight at all, as a physician assistant was

not an “acceptable medical source” under those regulations. See Thomas

v. Comm’r Soc. Sec., 819 Fed. App’x 90, 92 (3d Cir. 2020); Forster v.

Colvin, 208 F. Supp. 3d 636, 646 (M.D. Pa. 2015); 20 C.F.R.

§ 404.1502(a)(8) (providing that licensed physician assistants are

“acceptable medical sources” only for claims filed after March 27, 2017);

Soc. Sec. Ruling 06-3p, 2006 WL 2329939 (discussing evaluation of

physician assistant opinions as evidence from “other sources” rather than

as medical opinions).

the record.” Michelle K. v. Comm’r of Soc. Sec., ___ F. Supp. 3d ____, 2021

WL 1044262, at *3 (W.D. Pa. Mar. 19, 2021). However, the regulations

governing the evaluation of medical evidence were amended and the

treating physician rule was eliminated effective March 27, 2017. See

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82

Fed. Reg. 5,844 (Jan. 18, 2017); see also Densberger, 2021 WL 1172982,

at *7–*8; Michelle K., 2021 WL 1044262, at *3. “The range of opinions

that ALJs were enjoined to consider were broadened substantially and

the approach to evaluating opinions was changed from a hierarchical

form of review to a more holistic analysis.” Densberger, 2021 WL

1172982, at *7.

Under these new regulations, the agency “will not defer or give any

specific evidentiary weight, including controlling weight, to any medical

opinion(s) or prior administrative medical finding(s), including those

from [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). If a

medical source provides one or more medical opinions, the agency will

consider those medical opinions from that medical source together using

the following factors: “(1) supportability; (2) consistency; (3) relationship

with the claimant, including the length of the treatment relationship, the

frequency of examinations, purpose and extent of the treatment

relationship, and the examining relationship; (4) specialization; and

(5) any other factors that ‘tend to support or contradict a medical opinion

or prior administrative medical finding.’” Michelle K., 2021 WL 1044262,

at *3; see also 20 C.F.R. § § 404.1520c(a); Densberger, 2021 WL 1172982,

at *8. Under the new regulations, “[t]he two ‘most important factors for

determining the persuasiveness of medical opinions are consistency and

supportability,’ which are the ‘same factors’ that formed the foundation

of the treating source rule.” Densberger, 2021 1172982, at *8; see also 20

C.F.R. § 404.1520c(b)(2); Michelle K., 2021 WL 1044262, at *3; compare

20 C.F.R. § 404.1520c(c)(1) (supportability), and id. § 404.1520c(c)(2)

(consistency), with id. § 404.1527(c)(3) (supportability), and id.

§ 404.1527(c)(4) (consistency).8 An ALJ is specifically required to address

8 With respect to supportability, the new regulations provide that

“[t]he more relevant the objective medical evidence and supporting

explanations presented by a medical source are to support his or her

medical opinion(s) or prior administrative medical finding(s), the more

persuasive the medical opinions or prior administrative medical

finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). With respect to

consistency, the new regulations provide that “[t]he more consistent a

medical opinion(s) or prior administrative medical finding(s) is with the

evidence from other medical sources and nonmedical sources in the claim,

the more persuasive the medical opinion(s) or prior administrative

medical finding(s) will be.” Id. § 404.1520c(c)(2).

these two factors in his or her decision. See 20 C.F.R. § 1520c(b)(2); see

also Densberger, 2021 1172982, at *8; Michelle K., 2021 WL 1044262, at

*4. “The ALJ may—but is not required to—explain how he considered the

remaining factors.” Michelle K., 2021 WL 1044262, at *4; see also 20

C.F.R. § 1520c(b)(2); Densberger, 2021 WL 1172982, at *8. “However,

when the ALJ has found two or more medical opinions to be equally well

supported and consistent with the record, but not exactly the same, the

ALJ must articulate how he or she considered [the remaining]

factors . . . .” Densberger, 2021 WL 1172982, at *8; see also 20 C.F.R.

§ 1520c(b)(3); Michelle K., 2021 1044262, at *4.

Under this new regulatory scheme, the plaintiff’s contention that

Dr. Mauthe’s opinion is entitled to “controlling weight” is clearly

meritless because the treating physician rule upon which he relies had

been eliminated before he filed his claim for benefits with the agency.

Moreover, in reviewing the ALJ’s decision and the administrative record,

it is clear that the ALJ considered each of the pertinent factors in

evaluating the persuasiveness of Dr. Mauthe’s opinion. The ALJ found

Dr. Mauthe’s opinion that Quinn was permanently unable to work due to

low back pain was inconsistent with—and not supported by—the doctor’s

own examination findings, which reveled lumbar spine tenderness but no

obvious weakness. The ALJ found that Dr. Mauthe’s opinion that Quinn

was permanently unable to work was not supported by a functional

assessment of Quinn’s ability to perform work-related tasks. The ALJ

also articulated his consideration of Dr. Mauthe’s “very short history”

with Quinn, whom he had only recently examined on two occasions. 9

9 The plaintiff also complains, albeit only in passing, that the ALJ

failed to explicitly acknowledge Dr. Mauthe’s working diagnosis of

lumbar facet syndrome as a severe impairment. (See Doc. 18, at 5). First,

we note that, at step two of the five-step sequential evaluation process,

the ALJ found that Quinn had multiple severe impairments—

degenerative disc disease of the lumbar spine, degenerative joint disease

of the cervical spine, hepatitis C, and obesity—and continued on to step

three. Thus, the ALJ’s failure to include lumbar facet syndrome among

Quinn’s several expressly identified severe impairments was harmless

error, at most. See Salles v. Comm’r of Soc. Sec., 229 Fed. App’x 140, 145

n.2 (3d Cir. 2007); Welling v. Saul, No. 3:19-cv-00018, 2020 WL 1950456,

at *8 (M.D. Pa. Feb. 7, 2020). Moreover, the ALJ credited Quinn’s

degenerative disc disease of the lumbar spine as a severe impairment,

devoted eight single-spaced pages to a thorough discussion of Quinn’s

lower back impairment and medical evidence related to it, and reduced

Quinn’s residual functional capacity based on this impairment. Although

the ALJ may not have mentioned each medical term used to describe

Quinn’s symptoms, it is clear that the ALJ credited him with having a

severe impairment related to his lumbar spine, with associated radiating

pain but no weakness or other deficits of significance. See Walker v.

Astrue, Civil Action No. 2:07-cv-00411, 2008 WL 4181369, at *3, *8–*9

(S.D.W. Va. Sept. 8, 2008).

The ALJ accorded little weight to the opinion of Kyle M. Mummey,

PA-C, Quinn’s primary care provider who saw him on a monthly basis

following his injury in a motor vehicle accident in March 2017. Following

a March 24, 2017, encounter, Mummey stated in his treatment notes:

“Patient unable to complete job duties. Recommend off work x4 weeks

and recheck at that time.” (Tr. 229). Following an April 7, 2017,

encounter, Mummey stated in his treatment notes: “Patient unable to

work for next two weeks. Recheck in office at that time.” (Tr. 752).

Following a June 21, 2017, encounter, Mummey stated in his treatment

notes: “Patient unable to complete job duties currently. Recheck 4

weeks.” (Tr. 806). On October 30, 2017, Mummey completed a disability

form at the request of Mummey’s private disability insurer, stating that,

based on his most recent visit on October 16, 2017, Quinn was unable to

work from March 4, 2017, through the date of his next appointment,

November 20, 2017, at which time his prospective return-to-work date

would be reassessed. (Tr. 1027). On January 3, 2018, Mummey completed

a disability form stating that, based on his most recent visit on December

18, 2017, Quinn was unable to work from March 4, 2017, through the

date of his next appointment, January 15, 2018, at which time his

prospective return-to-work date would be reassessed. (Tr. 1028).

Following the January 15, 2018, encounter, Mummey stated in his

treatment notes: “Patient unable to work at present time. Recheck 1

month.” (Tr. 1038). The ALJ assigned “little weight” to PA Mummey’s

opinion, noting that, although Mummey was his treating provider, the

physician assistant’s periodic assessments were “self-limited in time” and

did “not provide a specific, function-by-function assessment of the

claimant’s ability to perform work-related tasks transferable to a

residual functional capacity assessment for disability.” (Tr. 26).

The plaintiff contends that PA Mummey’s opinion is entitled to

“controlling weight” as a medical opinion by a treating source that is well-

supported by the medical evidence of record. For the same reasons given

above with respect to Dr. Mauthe’s opinion, Mummey’s opinion is not

entitled to “controlling weight” under current regulations.10 Moreover, we

find the ALJ appropriately gave little weight to the temporary limitations

articulated in Mummey’s treatment notes and insurance reports, which

are of limited relevance to a determination of whether Quinn is

10 As noted in the margin above, Mummey’s opinion would not have

been entitled to controlling weight under prior regulations either. See

supra note 7.

permanently disabled. See Samantha Jean S. v. Comm’r of Soc. Sec., No.

1:18-CV-03120-RHW, 2019 WL 7819478, at *10 (E.D. Wash. Sept. 27,

2019) (“Medical opinions that assess only temporary limitations lasting

less than 12 months are of little probative value.”); see also Damisha V.J.

v. Saul, Case No. 19-cv-02975-SK, Case No. 2:19-cv-00343-DBP, 2020 WL

7393976, at *5 (N.D. Cal. Aug. 11, 2020); Guillen v. Saul, 2020 WL

1065741, at *4 (D. Utah Mar. 5, 2020); Smith-George v. Comm’r of Soc.

Sec., Civil Action No. 10-cv-14531, 2011 WL 6000742, at *11 (E.D. Mich.

Oct. 27, 2011).

Finally, the ALJ accorded great weight to the prior administrative

medical finding of Hong S. Park, M.D., a DDS medical consultant who

completed the medical portion of Quinn’s initial disability determination

on July 24, 2017. Based on a review of Quinn’s medical records, Dr. Park

found that, notwithstanding his impairments, Quinn retained the ability

to lift or carry up to 20 pounds occasionally and to lift or carry up to 10

pounds frequently, and to push or pull arm or leg controls subject to these

same exertional limits. Dr. Park found Quinn was able to stand, walk, or

sit for up to 6 hours each in an 8-hour workday, subject to the following

postural limitations: frequent balancing, kneeling, crouching, or climbing

of ramps or stairs was permitted, but no more than occasional stooping,

crawling, or climbing of ladders, ropes, or scaffolds. Dr. Park found no

other physical limitations, and he concluded that Quinn retained an RFC

that permitted him to perform light work. (Tr. 91–94). The ALJ assigned

“great weight” to Dr. Park’s administrative medical findings, noting that,

although he did not examine the claimant, as a state agency consultant,

Dr. Park had specialized program knowledge and an opportunity to

review the claimant’s medical records as they existed at the time of his

review. The ALJ found Dr. Park’s findings to be supported by and

consistent with the overall medical record, in which Quinn’s examining

medical sources indicated normal gait, normal and symmetric reflexes,

no motor or sensory deficits, and normal upper extremity strength.11 (Tr.

25).

The plaintiff contends that Dr. Park’s administrative medical

findings should not have been given “great weight,” but he has failed to

articulate any specific defects in either Dr. Park’s findings or the ALJ’s

11 Although the ALJ referenced only Quinn’s upper extremity

strength, we note that the same examination treatment notes relied upon

by the ALJ also indicate normal (5/5) or good (4/5) strength assessments

with respect to his lower extremities. (See Tr. 275–76).

consideration of them. The plaintiff argues only that the opinions of Dr.

Mauthe and PA Mummey should have been given “controlling weight,”

which therefore would have outweighed Dr. Park’s conflicting

administrative medical findings as a matter of course. But for the reasons

we have articulated above, the opinions of Dr. Mauthe and PA Mummey

are not entitled to “controlling weight” under the current regulations, and

the ALJ appropriately assigned little weight to both opinions.

Thus, the plaintiff’s argument boils down to whether the ALJ erred

in weighing the conflicting medical opinions or findings of these three

medical sources. But in evaluating the medical opinion evidence of

record, “the ALJ is not only entitled, but required to choose between”

conflicting medical opinions. Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.

1981). “[T]he possibility of drawing two inconsistent conclusions from the

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

substantial evidence.” Consolo, 383 U.S. at 620. Moreover, “[I]n 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.’” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.

2005)(quoting Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)).

Ultimately, to reverse the ALJ’s findings and decision, “we must find that

the evidence not only supports [a contrary] conclusion, but compels it.”

Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481

n.1 (1992); see also Smith v. Chater, 99 F.3d 780, 782 & n.3 (6th Cir. 1996)

(citing Elias-Zacarias in the context of social security disability benefits);

Hert v. Barnhart, 234 F. Supp. 2d 832, 837 (N.D. Ill. 2002) (“The court

may reverse the Commissioner’s decision only if the evidence ‘compels’

reversal, not merely because the evidence supports a contrary decision.”)

(citing Elias-Zacarias).

VI. Conclusion

Based on the foregoing, we conclude that the Commissioner’s

finding that Quinn was not disabled is supported by substantial evidence

and was reached based upon a correct application of the relevant law.

Accordingly, the Commissioner’s decision denying disability benefits is

AFFIRMED.

An appropriate Order follows.

Dated: April 29, 2021 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge