Gregorio v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LUSITANIA GREGORIO, : Civil No. 1:20-CV-608

:

Plaintiff : (Magistrate Judge Carlson)

:

v. :

:

:

KILOLO KIJAKAZI, :

Acting Commissioner of Social Security,1 :

:

Defendant :

MEMORANDUM OPINION

I. Introduction

For both the court and the Administrative Law Judge, the Social Security

appeal of Lusitania Gregorio presented a close and difficult case. In the instant case,

the plaintiff, Lusitania Gregorio (“Gregorio”) applied for disability insurance

benefits and a period of disability under Title II of the Social Security Act on

February 28, 2017, alleging disability due to diabetes, fibromyalgia, muscle spasm,

nerve pain, cholesterol, 2 herniated disc on neck pinching on her nerve, back pain,

pain in both shoulders, numbness and tingling sensation on both hands, and constant

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on

July 9, 2021. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure and 42 U.S.C. § 405(g) Kilolo Kijakazi is substituted for Andrew

Saul as the defendant in this suit.

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headaches. (Tr. 165, 166, 307-08). Gregorio alleged that she was disabled as of

September 1, 2016, the day after an unfavorable decision was issued by the

administrative law judge on a previous claim for disability. (Tr. 146-64, 307-08).

The evidence in this case presented the ALJ with a series of conundrums

framed by a murky factual record.

First, there was a dispute regarding the degree to which Gregorio could

effectively communicate in English, an issue which was relevant to her ability to

readily translate her job skills and find employment. Gregorio asserted that she could

not speak English and used an interpreter at the hearing before the ALJ. However,

in the course of the hearing she responded to questions without the aid of the

interpreter and she demonstrated English proficiency when she was naturalized as a

United States citizen. Thus, the evidence on this issue was in conflict.

Similar evidentiary conflicts abounded with respect to Gregorio’s medical

condition. In this case, the ALJ was confronted by a number of medical opinions and

findings which seemed inconsistent with one another. There were two medical

expert opinions from a state agency expert and a consulting examining source. Both

of these opinions concluded that Gregorio was limited to sedentary work, but the

two opinions disagreed with one another regarding the nature, extent, and degree of

Gregorio’s limitations. Thus, the medical opinions revealed a consensus as to an

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outcome, limiting Gregorio to sedentary work, but disagreement in the evaluation of

Gregorio’s impairments. Further complicating this medical picture was the fact that

Gregorio did not provide an opinion from a treating source in support of her

disability claim, but her treating physician had previously stated that she was

physically capable of adopting a child and caring for an infant, a medical notation

that was consistent with some significant level of physical capability to work.

Presented with a record riddled with factual conflicts and inconsistencies,

after consideration of the medical records and opinion evidence, including the

objective diagnostic tests and clinical findings on Gregorio’s physical and mental

status examinations, Gregorio’s longitudinal treatment history, and her documented

activities of daily living, the Administrative Law Judge (“ALJ”) who reviewed this

case concluded that Gregorio could perform a full range of light work and denied

her disability applications. Mindful of the fact that substantial evidence “means

only—'such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion,’” Biestek, 139 S. Ct. at 1154, we find that substantial evidence

supported the ALJ’s findings in this case. Therefore, for the reasons set forth below,

we will affirm the decision of the Commissioner denying this claim.

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II. Statement of Facts and of the Case

Lusitania Gregorio (“Gregorio”) applied for disability insurance benefits and

a period of disability under Title II of the Social Security Act on February 28, 2017,

alleging disability due to diabetes, fibromyalgia, muscle spasm, nerve pain,

cholesterol, 2 herniated disc in her neck pinching on her nerve, back pain, pain in

both shoulders, numbness and tingling sensation on both hands, and constant

headaches. (Tr. 165, 166, 307-08). Gregorio alleged that she was disabled as of

September 1, 2016, the day after an unfavorable decision was issued by the

administrative law judge on a previous claim for disability. (Tr. 146-64, 307-08).

Gregorio has a high school education and completed her education in the

Dominican Republic. (Tr. 338). Gregorio was approximately 43 years old at the time

of the alleged onset date of her disability and had prior employment as a machine

operator, production line worker, wood cutter, and picker. (Tr. 166, 338). Gregorio’s

date last insured is December 31, 2018 and on Gregorio’s date last insured she was

45 years old. (Tr. 18).

A. Gregorio’s Language Proficiency

Gregorio passed the English language proficiency requirement to be able to

read, write, speak, and understand basic English required to obtain U.S. citizen in

2009. (Tr. 20, 129, 160). Despite passing this English proficiency test, Gregorio

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alleges that she is now unable to communicate in English. (Doc. 18, at 22-24). At

her hearing, Gregorio initially testified that she could understand no English but

amended her testimony after ALJ questioning to say she was able to understand only

basic English. (Tr. 125). Gregorio testified that in her last job from 2011 through

2013 she communicated with her boss in English. (Tr. 127). Gregorio then testified

that she did not feel that she was able to communicate with anyone in English on

any level. (Id.) When the ALJ asked the question a second time and asked the

interpreter to make sure that Gregorio understood, Gregorio answered herself in

English that she could only communicate “like basic things.” (Id.) When the ALJ

later asked at a sensitive point in the hearing whether Gregorio’s adult daughter

worked, Gregorio responded in English that she worked part-time. (Tr. 139).

B. Gregorio’s Medical History

The medical record in this case was marked by conflicts and contradictory

themes but, under the deferential standard that applies to Social Security appeals,

contained substantial evidence which indicates that Gregorio retained the capacity

to perform some work. Gregorio has a long history of reported musculoskeletal and

neuropathic pain and was determined to have the severe impairments of degenerative

disc disease, fibromyalgia, and diabetes. (Tr. 18). Gregorio alleges that she is unable

to lift more than 5 pounds with both hands, that she is unable to stand for more than

5

30 minutes, that she is unable to sit for more than 40 minutes, that she is unable to

walk even a block, and that she was recommended a walker or cane but does not

want to use it. (Tr. 136-37). Gregorio alleges that she is in constant pain in her neck,

arms, and hands and drops things. (Tr. 132-33). She stated that the pain in her low

back radiated into her leg. (Tr. 133). She also claimed that she could not lift anything

and that she could not lift her head above her shoulders. (Tr. 133-34). Gregorio

additionally testified that she had problems with her feet “all the time” and that she

experienced migraines twice a month which last for 3-4 days. (Tr. 134).

Gregorio testified that she had adopted a baby one year before the hearing and

the baby was 3 years old at the time of the hearing. (Tr. 139). When asked if she took

care of the baby, Gregorio responded that her adult daughter took care of the baby.

(Tr. 139). When the ALJ asked if Gregorio’s daughter worked, Gregorio responded

in English without use of an interpreter that her daughter worked part-time. (Id.)

When asked who took care of the baby when her daughter was working, Gregorio

responded that her mother came to the house every day to look after the baby. (Tr.

139-40).

While Gregorio’s treatment history shows that she had repeatedly presented

to her physicians with subjective reports of pain, the clinical evidence permitted a

finding that these impairments were not wholly disabling. For example, on February

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11, 2016, Gregorio was seen by Dr. Myron Miller (“Dr. Miller”) complaining of

trouble in her left arm and shoulder, as well as anxiety at bedtime with trouble falling

asleep. (Tr. 468). On examination her mood was good and she was “minimally

anxious.” (Id.) She was diagnosed with anxiety and major depression, single

episode. (Id.) On February 19, 2016, an X-Ray of the Cervical and lumbar spines

showed moderate degenerative changes at C5-T1, most severe at C6-7, with no

significant dynamic instability, and minimal degenerative changes in the upper

lumbar spine. (Tr. 546-47).

At a February 22, 2016 visit at HMC, it was indicated that Gregorio’s workers

compensation claim was to be closed that month and she was seeking a second

opinion. (Tr. 558). An MRI of the cervical spine taken on September 16, 2015 was

reviewed and it was noted that it showed 3 levels of degenerative disc disease with

a posterior central disc protrusion at C3-4, C5-6 with right greater than left

neuroforaminal narrowing. (Tr. 459). During a May 12, 2016 visit, Gregorio was

noted to be “doing fair” with “okay” nerves and mood. (Tr. 472).

On May 25, 2016, Gregorio was seen by resident physician Pradeep

Singanaliur, MD, who stated that Gregorio had a normal musculoskeletal

examination with full range of motion and strength, as well as negative SLR but that

on neurological examination Gregorio complained of decreased sensation. (Tr. 478).

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Dr. Singanaliur recommended that Gregorio be referred to the rheumatology clinic.

(Id.)

On September 1, 2016, Gregorio was seen at the Good Samaritan Hospital ER

complaining of a headache that had lasted for 24 hours. (Tr. 485). It was noted that

Gregorio was last seen in the ER on September 20, 2015, and she was given Benadryl

and Reglan and stated that she improved thereafter. (Id.) Gregorio was released in

stable condition with a tension headache. (Tr. 486). On September 13, 2016,

Gregorio appeared at Dr. Miller’s office and was noted to be in no apparent distress

but to be “quite tender over the cervical paraspinal muscles bilaterally.” (Tr. 487).

On October 11, 2016, Plaintiff was seen in the Hershey Medical Center

(“HMC”) Rheumatology Clinic on referral from Myron Miller, MD. (Tr. 413). She

was noted to have injured her neck at work in 2013 and to have been treated by a

chiropractor. (Id.) It was noted that she had been seen by Dr. Gordon at HMC who

stated that she had cervical stenosis and some cervical disc bulging but was not a

candidate for surgery. (Id.) On examination, it was noted that Gregorio subjectively

complained of decreased sensation in the hands and feet but objectively was intact.

(Tr. 415). Gait was noted to be non-antalgic and there was no swelling, warmth or

limited range of motion of the joints in her hands. (Id.) Gregorio had 18/18 trigger

points and had mild tenderness of the basal joint left hand. (Id.) Nerve conduction

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studies of the LUE were normal. (Id.) Gregorio was given a tentative diagnosis of

fibromyalgia. (Tr. 416).

On October 18, 2016, Good Samaritan Hospital Physical Therapy notes, John

Kearns, PA, it was noted that the referral was for aquatic therapy. (Tr. 437). It was

noted that Gregorio complained of difficulty with car transfer, washing dishes, and

getting dishes from overhead cabinets. (Id.) However, Gregorio cancelled

appointments or failed to show up for appointments on ten occasions, (Tr. 442, 444,

445, 446, 450, 451, 452, 453, 455, 456), and her treatment was cancelled due to non-

compliance. (Tr. 456, 458)

On June 5, 2017, Gregorio was examined by Spencer Long, MD (“Dr. Long”)

at the request of the Commissioner. (Tr. 563-585). Gregorio was present with her

niece, who she said lives with her. (Tr. 565). Gregorio advised Dr. Long that she was

diagnosed with 2 herniated discs in 2013, was diagnosed with carpal tunnel

syndrome in 2015 and was considering surgery, was diagnosed with type 2 diabetes

and diabetic neuropathy in 2010, and was diagnosed with fibromyalgia in 2015.

Gregorio was 5’1” and weighed 152 pounds. (Tr. 566). On examination Gregorio

was in no apparent distress, had a normal gait, was unable to walk on heels and toes

secondary to pack pain, was able to squat ¼ of full, used no assistive device, had a

normal stance, did not need help getting on and off the table, and was able to rise

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without difficulty. (Tr. 567). SLR was positive in the left at 30 degrees and positive

on the right at 60 degrees. (Id.) Joints were stable and nontender with no swelling,

heat or redness. (Id.) Additionally, 13 of 18 trigger points for fibromyalgia were

positive, her grip strength was 4/5 bilaterally, and her fine motor movement of

zipping, tying, and buttoning were noted to be good. (Id.)

Dr. Long diagnosed Gregorio with cervical degenerative disc disease, bilateral

carpal tunnel syndrome, diabetic neuropathy (noting no sensory abnormalities on

exam), diabetes mellitis, fibromyalgia, endometriosis, and asthma. (Tr. 568). Dr.

Long opined that her prognosis was “fair” and concluded that Gregorio could lift up

to 10 pounds occasionally and frequently. (Tr. 571). He further opined that Gregorio

could sit for 8 hours in an 8 hour day and stand or walk for 1 hour each in an 8 hour

day; that Gregorio could never reach overhead; could occasionally reach in general,

handle and finger, and could frequently finger. (Tr. 573). Dr. Long stated that

Gregorio could never climb ladders, ropes or stairs and could never crouch or crawl,

but could occasionally climb stairs and ramps, balance, stoop, and kneel. (Id.)

On June 16, 2017, state agency analyst Jennifer Wilson, DO (“Dr. Wilson”)

reviewed Gregorio’s file and rendered an opinion. (Tr. 169-71). Dr. Wilson opined

that based upon the medical record and the listed activities of daily living, Gregorio’s

impairments could be expected to produce pain and weakness but that her allegations

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of the intensity, frequency, and functional limitation caused by the symptoms was

not substantiated by objective medical evidence and that her allegations were only

partially credible. (Tr. 169). According to Dr. Wilson, Gregorio could stand or walk

for 2 hours in an eight-hour day, sit for 6 hours in an 8-hour day, and could lift or

carry up to 10 pounds both frequently and occasionally. (Tr. 170). Dr. Wilson also

opined that Gregorio had no limitation with regard to pushing or pulling; and had no

limitation with regard to postural, manipulative, visual, communicative, or

environmental limitations. (Id.) In reaching these conclusions Dr. Wilson noted that

she considered the rheumatology examination of October 2016 which showed

normal strength, normal reflexes, negative SLR, normal gain, subjective reports of

decreased sensation, and 18/18 trigger points; the fact that Gregorio’s physical

therapy was discontinued for non-compliance; a BMI of 28.5 with good blood sugars

and blood pressure of 100/70, with tenderness over the knee and SI joints; a normal

x-ray of the knee; and the consultative report showing normal gait, no assistive

devices, ¼ squat, 13/18 trigger points, normal strength, 4/5 grip strength, positive

SLR, the ability to perform fine motor activities, and a cervical spine x-ray showing

mild degenerative disc disease. (Tr. 170-71).

Dr. Wilson also considered the opinion of Dr. Long but noted that the opinion

relied heavily on Gregorio’s subjective complaints and was not supported by the

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evidence. (Tr. 172). Dr. Wilson found the opinion to be without support from Dr.

Long and thus less persuasive. (Id.) Dr. Wilson opined that Dr. Long’s opinion was

an overestimation of the severity of Gregorio’s restrictions and limitations. (Id.)

Other clinical records from 2017 seemed to confirm that Gregorio retained the

capacity to perform some work. Thus, on June 9, 2017, an EEG was performed at

Hartman Rehab Associates which indicated functional range of motion, functional

strength, no atrophy, and normal electrodiagnostic testing of the upper extremities.

(Tr. 591-92). On June 17, 2017, ophthalmologist David Streisfeld, MD opined that

Gregorio had good vision with no evidence of diabetic retinopathy. (Tr. 593). On

June 20, 2017, Gregorio presented to Dr. Miller, asking him to complete a form

stating that she was capable of adopting a child. (Tr. 594). It was noted that her mood

was good, and she showed no sign of anxiety. (Id.) A form was completed by Dr.

Miller which indicated that Gregorio had no significant physical findings, was free

of communicable disease, had a good prognosis for continued health, was physically

capable of caring for children, and had depression which was controlled with

medication. (Tr. 596). On September 11, 2017 Dr. Miller was contacted by the

adoption agency, seeking information. (Tr. 600). When asked if Gregorio’s chronic

pain issues or diabetes would cause issues in parenting, he stated that they were

being treated and would not preclude parenting. (Id.)

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Throughout 2017, Gregorio received fairly conservative treatment for her

back and neck impairments, consisting of trigger point injections and physical

therapy. Moreover, x-rays and EMG studies generally did not reveal any severe

impairments. (Tr. 604-25, 639). Moreover, physical therapy records indicated that

Gregorio had limited English but was able to verbally confirm understanding of pain

management education. (Tr. 657, 662).

In 2018, Gregorio continued to receive trigger point injections. (Tr. 627-28,

630-31, 633-34, 705). An MRI of the lumbar spine was performed on June 26, 2018

indicated mild degenerative changes, mild disc bulge at L1-2 with no significant

effect on the thecal sac and a subtle protruded osteophyte mildly abutting the existing

L5 nerve root from the right neural foramen at L5-S1. (Tr. 702). On July 22, 2018

Gregorio was referred for physical therapy and a July 5, 2018 note indicates that

Gregorio showed moderate functional limitation and presented with complaints of

difficulty lifting and sleeping. (Tr. 714). Gregorio complained that she had decreased

strength, decreased endurance, and decreased range of motion and noted that a

barrier to progress was the fact that she had difficulty carrying her 18-pound infant.

(Tr. 714, 727). It was noted that Gregorio was independent with activities of daily

living but needed help to mop, sweep, and lift baskets. (Tr. 715).

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It was against this factual backdrop, marked by competing claims and

conflicting evidence, that Gregorio’s disability claim was evaluated by the ALJ.

C. Administrative Proceedings

Gregorio applied for disability insurance benefits on February 28, 2017, and

her application for benefits was denied on June 19, 2017. (Tr. 16). Thereafter,

Gregorio filed a written request for a hearing on July 10, 2017, and a hearing was

held on November 19, 2018. (Tr. 16, 187-88). At the hearing, both Gregorio and a

Vocational Expert testified. (Tr. 16). By a decision dated January 24, 2019, the ALJ

denied Gregorio’s application for benefits. (Tr. 12-29).

In that decision, the ALJ first concluded that Gregorio met the insured status

requirements of the Social Security Act through December 31, 2018 and had not

engaged in any substantial gainful activity between her alleged onset date of

disability of September 1, 2016 and her date last insured of December 31, 2018. (Tr.

18). At Step 2 of the sequential analysis that governs Social Security cases, the ALJ

found that Gregorio had the following severe impairments: degenerative disc

disease, diabetes, and fibromyalgia. (Id.) The ALJ concluded that these impairments

significantly limited Gregorio’s ability to perform basic work activities. (Id.)

Additionally, the ALJ found that mild obstructive sleep apnea was not a severe

impairment. (Id.) At Step 3, the ALJ determined that Gregorio did not have an

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impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments. (Tr. 19).

Between Steps 3 and 4, the ALJ fashioned a residual functional capacity

(RFC), considering Gregorio’s limitations from her impairments:

After careful consideration of the entire record, the undersigned finds

that through the date last insured, the claimant has the [RFC] to perform

the full range of light work as defined in 20 C.F.R. 404.1567(b).

(Tr. 19).

Specifically, in making the RFC determination, the ALJ considered the

testimony of Gregorio that she became disabled due to diabetes, fibromyalgia, nerve

pain, muscle spasms, cholesterol, two herniated discs in the neck, back pain, pain in

both shoulders, numbness and tingling in both hands, and constant headaches. (Tr.

19). The ALJ also considered Gregorio’s alleged language barriers and found that

Gregorio testified that she passed the English proficiency exam necessary to qualify

for United States citizenship, and that Gregorio testified that she can communicate

basic things in English. (Tr. 20).

The ALJ also considered the medical evidence of record, focusing upon the

internally inconsistent and conflicting opinions of Dr. Long and Dr. Wilson. On this

score the ALJ afforded little weight to the opinion of the consultative examiner Dr.

Long. The ALJ found that Dr. Long’s finding of positive straight leg raising was not

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consistent with the longitudinal record in which both the primary care physician and

the physical medicine and rehabilitation provider both consistently found negative

straight leg raising. (Tr. 24). The ALJ found that the hand and foot limitations that

Dr. Long described were in conflict with the objective findings on electrodiagnostic

testing as well as treatment examinations which revealed no objective evidence of

sensory or motor deficit. (Id.) The ALJ found Dr. Long’s opinions that Gregorio

cannot operate a motor vehicle inconsistent with Gregorio’s own testimony that she

does in fact drive a car. (Id.)

The ALJ also gave Dr. Wilson’s opinion little weight. (Tr. 23). The ALJ found

that Dr. Wilson’s views did not correspond to the treatment record as a whole and

did not correspond to the treatment records which Dr. Wilson cited. (Tr. 23-24). The

ALJ concluded that Dr. Wilson erred in citing the opinion and examination of Dr.

Long when Dr. Wilson herself had found Dr. Long’s opinion to be unpersuasive and

not supported by the record. (Tr. 24).

The ALJ did not give any weight to the statement of the treating physician,

Dr. Miller, that Gregorio was physically capable of caring for a child and noted good

prognosis for continued health. However, the ALJ specifically recited this evidence

in the decision, noting that the statement was consistent with physical findings made

within the same time period when Dr. Miller opined that there was no evidence of

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gross sensory or motor deficits bilaterally and that straight leg raising was negative.

(Tr. 22-23).

Having arrived at this RFC assessment for Gregorio based upon an evaluation

of these various conflicting medical opinions, the ALJ found at Step 4 that Gregorio

was capable of returning to her past relevant work as a machine operator and an

assembler, both as they are customarily performed and as they were actually

performed. (Tr. 24-25). The ALJ then made an alternate finding at Step 5 that, while

Gregorio was capable of returning to her past relevant work, she was a younger

individual who was able to communicate in English and who had a limited education

and that an application of the Medical-Vocational Rules 20 CFR Part 404, Subpart

P, Appendix 2, would result in a finding that Gregorio was not disabled. In making

this finding, the ALJ noted that Gregorio had passed the English language

proficiency test of the U.S. citizenship examination and that she rejected the

argument of Gregorio’s counsel that her English language skills had regressed in the

10 years since. (Tr. 25). Accordingly, the ALJ concluded that Gregorio did not meet

the stringent standard for disability set by the Act and denied her disability claims.

(Id.)

This appeal followed. (Doc. 1). On appeal, Gregorio contends that the ALJ’s

decision is not based on substantial evidence required under 42 U.S.C. § 405(g) and

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gives four separate grounds for appeal: that the ALJ erred in failing to consider the

limitations of Gregorio’s severe impairments of degenerative disc disease and

fibromyalgia; that the ALJ erred in failing to consider the limitations caused by

Gregorio’s sleep disorder, anxiety, obstructive sleep apnea, cervical spinal stenosis,

migraine headaches, diabetic neuropathy, obesity, and endometriosis; that the ALJ

erred in finding that Gregorio was capable of performing work at the light exertional

level when Dr. Long and Dr. Wilson found her capable of performing work at the

sedentary level; and that the ALJ erred in finding that Gregorio was capable of

communicating in English because Gregorio was able to pass the English

proficiency portion of the United States citizenship test. (Doc. 18, at 1-2). This case

is fully briefed and is, therefore, ripe for resolution. For the reasons set forth below,

under the highly deferential standard of review that applies here, the Commissioner’s

final decision is affirmed.

III. Discussion

A. Substantial Evidence Review – the Role of this Court

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, this Court’s review is limited to the question of whether the

findings of the final decision-maker are supported by substantial evidence in the

record. See 42 U.S.C. §405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200

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(3d Cir. 2008); Ficca v. Astrue, 901 F. Supp.2d 533, 536 (M.D.Pa. 2012).

Substantial evidence “does not mean a large or considerable amount of evidence, but

rather such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial

evidence is less than a preponderance of the evidence but more than a mere scintilla.

Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not

substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a

conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.

1993). But in an adequately developed factual record, substantial evidence may be

“something less than the weight of the evidence, and the possibility of drawing two

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

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 Supreme Court has recently underscored for us the limited scope of our

review in this field, noting that:

The phrase “substantial evidence” is a “term of art” used throughout

administrative law to describe how courts are to review agency

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––,

135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-

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evidence standard, a court looks to an existing administrative record

and asks whether it contains “sufficien[t] evidence” to support the

agency's factual determinations. Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis

deleted). And whatever the meaning of “substantial” in other contexts,

the threshold for such evidentiary sufficiency is not high. Substantial

evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see,

e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks

omitted). It means—and means only—“such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v.

Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)

(comparing the substantial-evidence standard to the deferential clearly-

erroneous standard).

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).

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

disabled, but rather whether the Commissioner’s finding that 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 Secretary’s determination as to the status of a

claim requires the correct application of the law to the facts.”); see also Wright v.

Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting that the scope of review on legal

matters is plenary); Ficca, 901 F. Supp.2d at 536 (“[T]he court has plenary review

of all legal issues . . . .”).

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Several fundamental legal propositions which flow from this deferential

standard of review. First, when conducting this review “we are mindful that we must

not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777

F.3d 607, 611 (3d Cir. 2014) (citing Rutherford, 399 F.3d at 552). Thus, we are

enjoined to refrain from trying to re-weigh the evidence. Rather our task is to simply

determine whether substantial evidence supported the ALJ’s findings. However, we

must also ascertain whether the ALJ’s decision meets the burden of articulation

demanded by the courts to enable informed judicial review. Simply put, “this Court

requires the ALJ to set forth the reasons for his decision.” Burnett v. Comm'r of Soc.

Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). As the Court of Appeals has noted

on this score:

In Burnett, we held that an ALJ must clearly set forth the reasons for

his decision. 220 F.3d at 119. Conclusory statements . . . are

insufficient. The ALJ must provide a “discussion of the evidence” and

an “explanation of reasoning” for his conclusion sufficient to enable

meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d

501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ

particular “magic” words: “Burnett does not require the ALJ to use

particular language or adhere to a particular format in conducting his

analysis.” Jones, 364 F.3d at 505.

Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

Thus, in practice ours is a twofold task. We must evaluate the substance of the

ALJ’s decision under a deferential standard of review, but we must also give that

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decision careful scrutiny to ensure that the rationale for the ALJ’s actions is

sufficiently articulated to permit meaningful judicial review.

B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ

To receive benefits under the Social Security Act by reason of disability, a

claimant must demonstrate an inability to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can

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

continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A); see also

20 C.F.R. §404.1505(a). To satisfy this requirement, a claimant must have a severe

physical or mental impairment that makes it impossible to do his or her previous

work or any other substantial gainful activity that exists in the national economy. 42

U.S.C. §423(d)(2)(A); 20 C.F.R. §404.1505(a). To receive benefits under Title II of

the Social Security Act, a claimant must show that he or she contributed to the

insurance program, is under retirement age, and became disabled prior to the date on

which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).

In making this determination at the administrative level, the ALJ follows a

five-step sequential evaluation process. 20 C.F.R. §404.1520(a). Under this

process, the ALJ must sequentially determine: (1) whether the claimant is engaged

in substantial gainful activity; (2) whether the claimant has a severe impairment; (3)

22

whether the claimant’s impairment meets or equals a listed impairment; (4) whether

the claimant is able to do his or her past relevant work; and (5) whether the claimant

is able to do any other work, considering his or her age, education, work experience

and residual functional capacity (“RFC”). 20 C.F.R. §404.1520(a)(4).

Between Steps 3 and 4, the ALJ must also assess a claimant’s residual

functional capacity (RFC). RFC is defined as “that which an individual is still able

to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm’r

of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R.

§§404.1520(e), 404.1545(a)(1). In making this assessment, the ALJ considers all of

the claimant’s medically determinable impairments, including any non-severe

impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R.

§404.1545(a)(2).

There is an undeniable medical aspect to an RFC determination, since that

determination entails an assessment of what work the claimant can do given the

physical limitations that the claimant experiences. Yet, when considering the role

and necessity of medical opinion evidence in making this determination, courts have

followed several different paths. Some courts emphasize the importance of medical

opinion support for an RFC determination and have suggested that “[r]arely can a

decision be made regarding a claimant's residual functional capacity without an

23

assessment from a physician regarding the functional abilities of the claimant.”

Biller v. Acting Comm'r of Soc. Sec., 962 F. Supp. 2d 761, 778–79 (W.D. Pa. 2013)

(quoting Gormont v. Astrue, Civ. No. 11–2145, 2013 WL 791455 at *7 (M.D. Pa.

Mar. 4, 2013)). In other instances, it has been held that: “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 F. App’x 6, 11

(3d Cir. 2006). Further, courts have held in cases where there is no evidence of any

credible medical opinion supporting a claimant’s allegations of disability that “the

proposition that an ALJ must always base his RFC on a medical opinion from a

physician is misguided.” Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D.

Pa. 2015).

These seemingly discordant legal propositions can be reconciled by

evaluation of the factual context of these decisions. Those cases which emphasize

the importance of medical opinion support for an RFC assessment typically arise in

the factual setting where a well-supported medical source has opined regarding

limitations which would support a disability claim, but an ALJ has rejected the

medical opinion which supported a disability determination based upon a lay

assessment of other evidence. In this setting, these cases simply restate the

commonplace idea that medical opinions are entitled to careful consideration when

24

making a disability determination, particularly when those opinions support a

finding of disability. In contrast, when an ALJ is relying upon other evidence, such

as contrasting clinical or opinion evidence or testimony regarding the claimant’s

activities of daily living, to fashion an RFC courts have adopted a more pragmatic

view and have sustained the ALJ’s exercise of independent judgment based upon all

of the facts and evidence. See Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir.

2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D. Pa. 2015). In either

event, once the ALJ has made this determination, our review of the ALJ's assessment

of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if

it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d

Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at

*5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar

v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun

v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12,

2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366

(M.D. Pa. Mar. 27, 2018).

At Steps 1 through 4, the claimant bears the initial burden of demonstrating

the existence of a medically determinable impairment that prevents him or her in

engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once

25

this burden has been met by the claimant, it shifts to the Commissioner at Step 5 to

show that jobs exist in significant number in the national economy that the claimant

could perform that are consistent with the claimant’s age, education, work

experience and RFC. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d at

1064.

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significant among these legal benchmarks is a requirement that the

ALJ adequately explain the legal and factual basis for this disability determination.

Thus, in order to facilitate review of the decision under the substantial evidence

standard, the ALJ's decision must be accompanied by "a clear and satisfactory

explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d

Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate

which evidence was accepted, which evidence was rejected, and the reasons for

rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in

his decision which evidence he has rejected and which he is relying on as the basis

for his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir.

1999).

26

C. Legal Benchmarks for the ALJ’s Assessment of Medical Opinion

and Lay Evidence

The Commissioner’s regulations also set standards for the evaluation of

medical evidence, and define medical opinions as “statements from physicians and

psychologists or other acceptable medical sources that reflect judgments about the

nature and severity of [a claimant’s] impairment(s), including [a claimant’s]

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

impairments(s), and [a claimant’s] physical or mental restrictions.” 20 C.F.R.

§404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate every

medical opinion received. 20 C.F.R. §404.1527(c).

In deciding what weight to accord to competing medical opinions and

evidence, the ALJ is guided by factors outlined in 20 C.F.R. §404.1527(c). “The

regulations provide progressively more rigorous tests for weighing opinions as the

ties between the source of the opinion and the individual become weaker.” SSR 96-

6p, 1996 WL 374180 at *2. Treating sources have the closest ties to the claimant,

and therefore their opinions are generally entitled to more weight. See 20 C.F.R.

§404.1527(c)(2)(“Generally, we give more weight to opinions from your treating

sources...”); 20 C.F.R. §404.1502 (defining treating source). Under some

circumstances, the medical opinion of a treating source may even be entitled to

controlling weight. 20 C.F.R. §§04.1527(c)(2); see also SSR 96-2p, 1996 WL

27

374188 (explaining that controlling weight may be given to a treating source’s

medical opinion only where it is well-supported by medically acceptable clinical and

laboratory diagnostic techniques, and it is not inconsistent with the other substantial

evidence in the case record).

Where no medical source 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 opinions:

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 were 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).

At the initial level of administrative review, State agency medical and

psychological consultants may act as adjudicators. See SSR 96-5p, 1996 WL 374183

at *4. As such, they do not express opinions; they make findings of fact that become

part of the determination. Id. However, 20 C.F.R. §404.1527(e) provides that at the

ALJ and Appeals Council levels of the administrative review process, findings by

nonexamining State agency medical and psychological consultants should be

28

evaluated as medical opinion evidence. Therefore, ALJs must consider these

opinions as expert opinion evidence by nonexamining physicians and must address

these opinions in their decisions. SSR 96-5p, 1996 WL 374183 at *6. Opinions by

State agency consultants can be given weight “only insofar as they are supported by

evidence in the case record.” SSR 96-6p, 1996 WL 374180 at *2. In appropriate

circumstances, opinions from nonexamining State agency medical consultants may

be entitled to greater weight than the opinions of treating or examining sources. Id.

at *3.

Oftentimes, as in this case, an ALJ must evaluate medical opinions and

records tendered by both treating and non-treating sources. Judicial review of this

aspect of ALJ decision-making is guided by several settled legal tenets. First, when

presented with a disputed factual record, it is well-established that “[t]he 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). Thus, “[w]here, . . . , the opinion of a treating physician

conflicts with that of a non-treating, non-examining physician, the ALJ may choose

whom to credit but ‘cannot reject evidence for no reason or for the wrong reason.’”

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Mason, 994 F.2d at

1066). Therefore, provided that the decision is accompanied by an adequate,

29

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

medical opinions and evidence deserve greater weight.

Further, in making this assessment of medical evidence:

An ALJ is [also] entitled generally to credit parts of an opinion without

crediting the entire opinion. See Thackara v. Colvin, No. 1:14–CV–

00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015);

Turner v. Colvin, 964 F. Supp. 2d 21, 29 (D.D.C. 2013) (agreeing that

“SSR 96–2p does not prohibit the ALJ from crediting some parts of a

treating source's opinion and rejecting other portions”); Connors v.

Astrue, No. 10–CV–197–PB, 2011 WL 2359055, at *9 (D.N.H. June

10, 2011). It follows that an ALJ can give partial credit to all medical

opinions and can formulate an RFC based on different parts from the

different medical opinions. See e.g., Thackara v. Colvin, No. 1:14–CV–

00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015).

Durden v. Colvin, 191 F.Supp.3d 429, 455 (M.D. Pa. 2016).

Similar considerations govern an ALJ’s evaluation of lay testimony. When

evaluating lay testimony regarding a claimant’s reported degree of disability, we are

reminded that:

[T]he ALJ must necessarily make certain credibility determinations,

and this Court defers to the ALJ's assessment of credibility. See Diaz v.

Comm'r, 577 F.3d 500, 506 (3d Cir. 2009) (“In determining whether

there is substantial evidence to support an administrative law judge's

decision, we owe deference to his evaluation of the evidence [and]

assessment of the credibility of witnesses....”). However, the ALJ must

specifically identify and explain what evidence he found not credible

and why he found it not credible. Adorno v. Shalala, 40 F.3d 43, 48 (3d

Cir. 1994) (citing Stewart v. Sec'y of Health, Education and Welfare,

714 F.2d 287, 290 (3d Cir. 1983)); see also Stout v. Comm'r, 454 F.3d

1050, 1054 (9th Cir. 2006) (stating that an ALJ is required to provide

“specific reasons for rejecting lay testimony”). An ALJ cannot reject

30

evidence for an incorrect or unsupported reason. Ray v. Astrue, 649

F.Supp.2d 391, 402 (E.D. Pa. 2009) (quoting Mason v. Shalala, 994

F.2d 1058, 1066 (3d Cir. 1993)).

Zirnsak v. Colvin, 777 F.3d 607, 612–13 (3d Cir. 2014).

Yet, it is also clear that:

Great weight is given to a claimant's subjective testimony only when it

is supported by competent medical evidence. Dobrowolsky v. Califano,

606 F.2d 403, 409 (3d Cir. 1979); accord Snedeker v. Comm'r of Soc.

Sec., 244 Fed.Appx. 470, 474 (3d Cir. 2007). An ALJ may reject a

claimant's subjective testimony that is not found credible so long as

there is an explanation for the rejection of the testimony. Social

Security Ruling (“SSR”) 96–7p; Schaudeck v. Comm'r of Social

Security, 181 F.3d 429, 433 (3d Cir. 1999). Where an ALJ finds that

there is an underlying medically determinable physical or mental

impairment that could reasonably be expected to produce the

individual's pain or other symptoms, however, the severity of which is

not substantiated by objective medical evidence, the ALJ must make a

finding on the credibility of the individual's statements based on a

consideration of the entire case record.

McKean v. Colvin, 150 F.Supp.3d 406, 415–16 (M.D. Pa. 2015) (footnotes omitted).

Thus, we are instructed to review an ALJ’s evaluation of a claimant’s subjective

reports of pain under a standard of review which is deferential with respect to the

ALJ’s well-articulated findings but imposes a duty of clear articulation upon the ALJ

so that we may conduct meaningful review of the ALJ’s conclusions.

In the same fashion that medical opinion evidence is evaluated, the Social

Security Rulings and Regulations provide a framework under which the severity of

a claimant's reported symptoms are to be considered. 20 C.F.R. §§ 404.1529,

31

416.929; SSR 16–3p. It is important to note that though the “statements of the

individual concerning his or her symptoms must be carefully considered, the ALJ is

not required to credit them.” Chandler, 667 F.3d at 363 (referencing 20 C.F.R.

§404.1529(a) (“statements about your pain or other symptoms will not alone

establish that you are disabled.”). It is well-settled in the Third Circuit that

“[a]llegations of pain and other subjective symptoms must be supported by objective

medical evidence.” Hantraft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (referring to

20 C.F.R. § 404.1529). When evaluating a claimant’s symptoms, the ALJ must

follow a two-step process in which the ALJ resolves whether a medically

determinable impairment could be the cause of the symptoms alleged by the

claimant, and subsequently must evaluate the alleged symptoms in consideration of

the record as a whole. SSR 16-3p.

First, symptoms, such as pain or fatigue, will only be considered to affect a

claimant's ability to perform work activities if such symptoms result from an

underlying physical or mental impairment that has been demonstrated to exist by

medical signs or laboratory findings. 20 C.F.R. §§ 404.1529(b); SSR 16–3p. During

the second step of this credibility assessment, the ALJ must determine whether the

claimant's statements about the intensity, persistence or functionally limiting effects

of his or her symptoms are substantiated based on the ALJ's evaluation of the entire

32

case record. 20 C.F.R. § 404.1529(c); SSR 16–3p. This includes but is not limited

to: medical signs and laboratory findings, diagnosis and other medical opinions

provided by treating or examining sources, and other medical sources, as well as

information concerning the claimant's symptoms and how they affect his or her

ability to work. Id. The Social Security Administration has recognized that

individuals may experience their symptoms differently and may be limited by their

symptoms to a greater or lesser extent than other individuals with the same medical

impairments, signs, and laboratory findings. SSR 16–3p.

Thus, to assist in the evaluation of a claimant's subjective symptoms, the

Social Security Regulations identify seven factors which may be relevant to the

assessment of the severity or limiting effects of a claimant's impairment based on a

claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3). These factors include: activities

of daily living; the location, duration, frequency, and intensity of the claimant's

symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and

side effects of any medication the claimant takes or has taken to alleviate his or her

symptoms; treatment, other than medication that a claimant has received for relief;

any measures the claimant has used to relieve his or her symptoms; and, any other

factors concerning the claimant's functional limitations and restrictions. Id.; see

George v. Colvin, No. 4:13–CV–2803, 2014 WL 5449706, at *4 (M.D. Pa. Oct. 24,

33

2014); Koppenaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1995999, at *9 (M.D.

Pa. Apr. 8, 2019), report and recommendation adopted sub nom. Koppenhaver v.

Berryhill, No. 3:18-CV-1525, 2019 WL 1992130 (M.D. Pa. May 6, 2019); Martinez

v. Colvin, No. 3:14-CV-1090, 2015 WL 5781202, at *8–9 (M.D. Pa. Sept. 30, 2015).

D. The ALJ’s Decision in this Case is Supported by Substantial

Evidence.

In this setting, we are mindful that we are not free to substitute our

independent assessment of the evidence for the ALJ’s determinations. Rather, we

must simply ascertain whether the ALJ’s decision is supported by substantial

evidence, a quantum of proof which is less than a preponderance of the evidence but

more than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401 (1971), and

“does not mean a large or considerable amount of evidence, but rather such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Pierce v. Underwood, 487 U.S. 552, 565 (1988). Judged against these deferential

standards of review, we find that substantial evidence supported the decision by the

ALJ that Gregorio could perform a full range of light work and was not disabled.

1. The ALJ did not err in considering limitations caused by

Gregorio’s severe impairments of degenerative disc disease and

fibromyalgia.

Gregorio’s first claim of error challenges the ALJ’s consideration of the

limitations Gregorio experiences as a result of her severe impairments of

34

degenerative disc disease, diabetes, and fibromyalgia. (Doc. 18, at 11-16). Gregorio

alleges specifically that the ALJ failed to set forth postural limitations, did not

include a sit/stand option, did not include any non-exertional limitations related to

difficulty in concentrating, did not include any limitations as to ability to remain on

task, did not include any provisions with regard to absenteeism, and did not reference

any medical opinion of record that conflicted with the findings of Dr. Long or Dr.

Wilson, which limited Gregorio to sedentary work. (Doc. 18, at 13-14).

While Gregorio notes that she has repeatedly complained of pain and

limitations, her medical record, activities of daily living, and hearing testimony

provided a basis for concluding that she could perform some work. As the ALJ

observed:

[T]he claimant’s statements about the intensity, persistence and

limiting effects of these symptoms are not entirely consistent with the

medical record and other evidence in the record for the reasons

explained in this decision. As for the claimant’s statements about the

intensity, persistence and limiting effect of her symptoms they are

inconsistent with the relatively benign clinical and laboratory signs and

findings of record and the treatment history. In terms of recent

treatment, it is conservative in nature and essentially limited to the use

of medication.

(Tr. 21).

In our view, this aspect of the ALJ’s decision was supported by substantial

evidence; that is, “'such relevant evidence as a reasonable mind might accept as

35

adequate to support a conclusion.’” Biestek, 139 S. Ct. at 1154. Thus, while Gregorio

notes that she has taken both narcotic pain medication in the past as well as trigger

point injections, those treatment modalities are conservative in nature. Her course of

physical therapy is also considered conservative in nature, yet Gregorio did not

complete this conservative course of treatment. As the ALJ pointed out, there has

been no need for emergency room visits nor have there been any indications that

Gregorio would need surgery of any kind. (Id.)

While Gregorio’s physical impairments were confirmed by diagnostic tests,

here treatment records did not compel a finding of disability. For example, the

medical records of Dr. Miller note that Gregorio’s diabetes was well controlled. (Tr.

468, 472, 494, 512). Likewise, Gregorio alleges that she is unable to lift more than

5 pounds with both hands, that she is unable to stand for more than 30 minutes, that

she is unable to sit for more than 40 minutes, that she is unable to walk even a block,

and that she was recommended a walker or cane but does not want to use it. (Tr.

136-37). However, medical records indicated that Gregorio had a non-antalgic gait

and did not need any assistive device.2

Further, in 2016, Dr. Pradeep Singanaliur observed that Gregorio had a

2 No prescription for a cane or walker is found in the record, nor is any reference that

any medical source mentioned the use of an assistive device.

36

normal musculoskeletal examination, normal gait, and negative SLR. (Tr. 478). On

examination in the HMC Rheumatology Clinic that same year it was noted that

subjectively complained of decreased sensation of the hands and feet but was

objectively intact and that her gait was non-antalgic. (Tr. 415). In June of 2017, Dr.

Long noted that Gregorio’s gait was normal, that she used no assistive device, and

that she needed no help getting on and off the table. (Tr. 566-67). In assessing

Gregorio’s complaints of diabetic neuropathy, Dr. Long noted that Gregorio had no

sensory abnormalities on examination. (Tr. 571). In June of 2017, Dr. Miller, who

had a lengthy treatment history with Gregorio, opined that she had no significant

physical findings and was capable of performing all of the physical and mental duties

necessary to parent a foster child. (Tr. 596).34 He opined that she had a good

prognosis for continued health. (Id.) In October of 2018, a physical therapy note

indicates that Gregorio had normal gait, range of motion, and strength. (Tr. 71).

Gregorio’s hearing testimony also raised questions regarding the severity of

her impairments. For example, she stated that she was only able to lift 5 pounds with

3 The DOT listing for a person who cares for a child in a private home is that of a

“child monitor” DOT 301.677-010 is a medium level exertion position.

4 We distinguish this circumstance from that in which an applicant for disability who

is already a parent continues to do so with assistance after becoming disabled, as Dr.

Miller completed a form which requested information as to whether Gregorio was

herself physically capable of completing those tasks.

37

both hands, but her treating physician Dr. Miller advised that Gregorio is capable of

doing what is physically necessary to be the foster parent of an infant, as noted

above. Gregorio also indicated that she never lifted the baby, but instead the baby

was cared for by either her daughter or her mother, who would come to her house

every day to care for the baby when her daughter was working. (Tr. 139-40).

However, physical therapy notes indicated that Gregorio stated that one of her issues

was that she had difficulty when she “carried” her 18-pound infant. (Tr. 727). The

physical therapy notes indicate that Gregorio was capable of lifting and carrying in

excess of 5-10 pounds.

In addition, the medical record presented contradictory evidence concerning

the degree to which Gregorio’s neuropathy was disabling. On February 19, 2016, an

X-Ray of the Cervical and lumbar spines showed moderate degenerative changes at

C5-T1, most severe at C6-7, with no significant dynamic instability and minimal

degenerative changes in the upper lumbar spine. (Tr. 546-47). An MRI of the

cervical spine taken on September 16, 2015 was reviewed and it was notes that it

showed 3 levels of degenerative disc disease with a posterior central disc protrusion

at C3-4, C5-6 with right greater than left neuroforaminal narrowing. (Tr. 459). On

June 9, 2017, an EMG was performed at Hartman Rehab Associates which indicated

functional range of motion, functional strength, no atrophy, and normal

38

electrodiagnostic testing of the upper extremities. (Tr. 591-92). On December 9,

2017, an X-ray of the lower back was performed at Good Samaritan Hospital which

showed no compression fracture or misalignment, mild bilateral L5-S1 facet

arthrosis and normal disc spaces. (Tr. 639).

On December 12, 2017, an EMG study was done at HMC of the lower

extremities. (Tr. 605-06). Normal findings were noted. (Tr. 606). An MRI of the

lumbar spine was performed on June 26, 2018, which indicated mild degenerative

changes, mild disc bulge at L1-2 with no significant effect on the thecal sac and a

subtle protruded osteophyte mildly abutting the existing L5 nerve root from the right

neural foramen at L5-S1. (Tr. 702). On December 28, 2018, an MRI of the cervical

spine was performed. (Tr. 68-69). It was noted to have similar findings to the 2015

MRI, with degenerative changes in the cervical spine, moderate stenosis at C6-7 and

mild stenosis at C4-5 but no high grade neural foraminal stenosis at any level. (Tr.

69).

Each of these diagnostic tests was noted by the ALJ, as was the fact that on

examination there were no physical findings to support Gregorio’s subjective

complaints of pain. (Tr. 21-24). Thus, here we find that the ALJ has given an

adequate explanation of his reasoning regarding Gregorio’s severe impairments, and

substantial evidence, that is, “such relevant evidence as a reasonable mind might

39

accept as adequate to support a conclusion,” Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019), supported these factual findings. Under this deferential standard of

review there are no grounds for remand in this regard.

2. The ALJ did not err in considering limitations caused by

Gregorio’s sleep disorder, anxiety, obstructive sleep apnea,

cervical spinal stenosis, migraine headaches, diabetic

neuropathy, obesity, and endometriosis.

Gregorio also appears to make an argument that at Step 2 the ALJ erred in

finding some of her alleged impairments to be nonsevere or failed to make a finding

as to whether they were severe. Gregorio argues that the ALJ erred because he

“makes little or no mention of Claimant’s sleep disorder, anxiety, obstructive sleep

apnea, cervical spinal stenosis, migraine headaches, diabetic neuropathy, obesity or

endometriosis.” (Doc 18, at 17). We find Gregorio’s argument unpersuasive and in

any event conclude that any failure to further address the severity of these conditions

constituted, at most, harmless error.

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, 107 S.Ct. 2287, 96 L.Ed.2d 119 (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 which would have no more

40

than a minimal effect on the Plaintiff's ability to do basic work activities. 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, 107 S.Ct. 2287. Stancavage v. Saul, 469 F. Supp. 3d 311, 331 (M.D. Pa.

2020). Further,

[I]t is well-settled that: “[E]ven if an ALJ erroneously determines

at step two that one impairment is not ‘severe,’ the ALJ's ultimate

decision may still be based on substantial evidence if the ALJ

considered the effects of that impairment at steps three through

five.” Naomi Rodriguez v. Berryhill, No. 1:18-CV-684, 2019 WL

2296582, at *10 (M.D. Pa. May 30, 2019) (citing cases).

Id. at 332.

Here, we cannot find any prejudicial error in the ALJ’s consideration of these

remaining medical conditions. While the ALJ’s decision did not clearly delineate all

of these conditions as nonsevere at Step 2, it is evident that the ALJ did consider

these conditions throughout the sequential analysis of her claim. For example, the

ALJ noted Gregorio’s complaints of neuropathy from diabetes, testimony regarding

migraine headaches, problems sleeping, constant pain and cramps, and problems

with concentrating. (Tr. 20-21). The ALJ went on however to conclude that she

41

found Gregorio’s testimony to be inconsistent with the medical evidence as noted

above. (Tr. 21). With regard to Gregorio’s complaints of migraine headaches, there

was only one instance in the record in which Gregorio needed to seek treatment for

a migraine, which took place in September of 2016. (Tr. 485). In March of 2018,

when Gregorio was adopting a child, she reported to Dr. Miller that Imitrex was

working to lessen her headaches. (Tr. 607). In July of 2018, Dr. Miller noted that

Gregorio’s migraine headaches were “under control.” (Tr. 719).

As for Gregorio’s allegations of anxiety, the record indicated that Gregorio

did not seek formal treatment from a psychiatrist or psychologist for mental health

issues and instead relied upon obtaining medication from Dr. Miller, her primary

doctor. Dr. Miller’s own notes documented Gregorio’s complaints of anxiety but did

not reflect that it is a severe impairment. On February 11, 2016, Gregorio was

diagnosed by Dr. Miller as suffering from anxiety at bedtime falling asleep, although

he notes that she was “minimally anxious” on examination. (Tr. 468). In June of

2016, Dr. Miller stated that Gregorio’s “nerves” were “okay.” (Tr. 472). In a June

2017 treatment note Dr. Miller indicated that Gregorio showed no sign of anxiety.

(Tr. 594). In June of 2017, when asked if Gregorio had any mental health issues as

part of her adoption questionnaire, Dr. Miller stated that Gregorio had depression

which was controlled with medication and did not even mention anxiety. (Tr. 596).

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In July of 2018, Dr. Miller stated that Gregorio’s nerves were “fair.” (Tr. 719).

Gregorio was seen in November of 2018 at HMC for trigger point injection

and was noted on mental status examination to have appropriate mood and affect.

(Tr. 71). A note from Dr. Miller regarding Gregorio’s December 2018 visit indicated

that Gregorio reported that her nerves were “fair” but that no anxiety was noted on

examination. (Tr. 86-87). Further, the ALJ’s expressly concluded that Gregorio’s

mild sleep apnea was not a severe impairment. (Tr. 18). Substantial evidence

supported this finding since on January 11, 2017, Gregorio was seen in the HMC

Sleep Center for a sleep study. (Tr. 504). It was determined after study that Gregorio

tolerated CPAP well and showed a normal EKG and EEG. (Tr. 507.) Gregorio’s

oxygen saturation was at 99% and her sleep cycles normal after use of a CPAP

machine. (Id.)

Finally, with regard to the issue of obesity, Gregorio did not meet the criteria

to be found obese. Not only did Gregorio fail to allege obesity as an impairment

when she filed her claim, but she further fails to articulate any specific manner in

which obesity would have affected her treatment or condition. In 2019, a Policy

Interpretation Ruling was added to the Social Security Rulings. SSR 19-2p: Title II

and XVI: Evaluating Cases Involving Obesity. The SSR provides that by definition:

Obesity is a complex disorder characterized by an excessive amount of

body fat, and is generally the result of many factors including

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environment, family history and genetics, metabolism, and behavior.

Health care practitioners diagnose obesity based on a person’s medical

history, physical examinations, and body mass index (BMI). For adults,

BMI is a person’s weight in kilograms divided by the square of his or

her height in meters (kg/m2). People with obesity weigh more than

what is considered the healthy weight for their height. In the medical

community, obesity is defined as a BMI of 30.0 or higher.

(Id.)

Gregorio stands at 5 feet 2 inches tall. (Tr. 165). At the time that Gregorio

filed her claim, she weighed 160 pounds and had a body mass index of 29.3. (Id.)

Further, it appears that on March 24, 2017, Gregorio had a BMI of 28.5. (Tr. 23.)

Thus, Gregorio did not fit the criteria to establish obesity. Therefore, we cannot find

that the ALJ erred in failing to address obesity severe impairment in this case.

3. The ALJ did not err in setting forth his determination of

Gregorio’s Residual Functional Capacity assessment.

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, 667 F.3d at 361. 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

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which to reject as long as there is a rational basis for the decision. Plummer v. Apfel,

186 F.3d 422, 429 (3d Cir. 1999).

This case presented the ALJ with a challenging factual scenario. There was

no treating source opinion provided by the plaintiff to support her claim of disability

although, on June 27, 2017 and September 11, 2017, Dr. Miller opined that Gregorio

was physically and mentally capable of completing all tasks necessary to care for an

infant as a foster or adoptive parent, a task which is considered medium exertional

work as defined by the Dictionary of Occupational Titles. Therefore, Gregorio

invites us to discount this evidentiary enigma and give greater weight to the opinions

of a one-time examining physician and a non-examining state agency analyst, both

of whom suggested for very different reasons that Gregorio was limited to sedentary

work. (Doc. 18, at 19-22).

Presented with this odd constellation of evidence, the ALJ found that the

opinions of Dr. Long and Wilson were inconsistent with the record, including an

MRI which was performed after their opinions were rendered, and that their opinions

were based in large part upon the subjective complaints of Gregorio, which the ALJ

had determined to lack credibility. (Tr. 23-24). The ALJ articulated that the opinion

of Dr. Wilson was inconsistent with treatment records, noting that Dr. Wilson cited

the following evidence which contradicted her opinion: a rheumatology examination

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which showed full strength, normal reflexes, negative SLR, a non-antalgic gait and

subjective complaints of decreased sensation over the hands and feet; a history of

non-compliance with scheduled physical therapy which resulted in discharge from

the treatment; a treatment note indicating a BMI less than 30, normal blood sugars,

and diagnosis of diabetes with neuropathy, fibromyalgia; and a normal left knee x-

ray. (Tr. 23). The ALJ noted that the diagnostic testing revealed that Gregorio does

not suffer from neuropathy, and an MRI of the lumbar spine subsequent to Dr.

Wilson’s opinion indicated that Gregorio has only mild abnormalities. (Tr. 24)

With regard to the opinion of Dr. Long, the ALJ explained that this opinion

conflicted with the longitudinal record. While Dr. Long indicated that Gregorio had

hand and foot limitations, they were inconsistent with the negative electrodiagnostic

testing results which indicated no neuropathy or radiculopathy, or the examination

results of Dr. Miller’s examination which revealed no evidence of gross sensory or

motor deficits of the upper or lower extremities. (Tr. 24). The ALJ noted as well that

Dr. Long’s opinions were rendered prior to the MRI of the lumbar spine and were

inconsistent with its findings. (Id.) Further, the ALJ observed that Dr. Wilson, in

reviewing Dr. Long’s opinions, found that they were unpersuasive and not supported

by the objective findings. (Id.)

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Although the ALJ did not have the benefit of any medical opinion from Dr.

Miller, who had treated Gregorio for many years, he did detail Dr. Miller’s statement

that Gregorio had no significant physical impairments which prevented her from

undertaking full-time child care, and that although she suffered from diabetes and

pain syndromes they were being treated with medication. (Tr. 22-23). The ALJ noted

as well that Dr. Miller’s examination of Gregorio showed no evidence of gross

sensory or motor deficits bilaterally. (Tr. 23, 24).

This profoundly mixed and equivocal evidentiary record presented the ALJ,

and this court, with a close and difficult case. The clinical evidence and statements

from Gregorio’s treating source strongly suggested a capacity for work since the

doctor stated that Gregorio was physically capable of full-time infant care.

Moreover, that treating source provided no medical opinion which suggested that

Gregorio was disabled. In contrast, the consultative and nonexamining medical

sources provided opinions which reached similar results, concluding that Gregorio

could perform sedentary work, but reached these conclusions through what the ALJ

determined to be flawed analyses. Given clinical evidence from a treating source

indicating that Gregorio had significant physical capabilities, and flawed analyses

by non-treating and nonexamining sources which found that she could perform

sedentary work, we cannot say that the ALJ erred in finding that Gregorio was able

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to engage in a limited scope of light work and substantial evidence, that is, “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion,” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019), supported this

determination.

Assessing a claimant’s RFC falls within the purview of the ALJ. 20 C.F.R. §

404.1546(c); SSR 96-8p, 1996 WL 374184 (S.S.A. July 2, 1996). “[RFC] is defined

as that which an individual is still able to do despite the limitations caused by his or

her impairment(s).’” Burnett, 220 F.3d at 121 (quoting Hartranft v. Apfel, 181 F.3d

358, 359 (3d Cir. 1999)). Specifically, one’s RFC 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 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). An ALJ’s RFC

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

790 F.2d 26, 28 (3d Cir. 1986). “[O]nce the ALJ has made this [RFC] determination,

[a court’s] review of the ALJ’s assessment of the plaintiff’s RFC is deferential, and

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that 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).

Applying the above standard to the present record, the Court finds substantial

evidence to support the ALJ’s RFC determination. Here, the ALJ considered

Gregorio’s physical and mental impairments in crafting the RFC, including

Gregorio’s degenerative disc disease, fibromyalgia, and diabetes. (Tr. 18). The ALJ

explained, however, that despite evidence of severe physical impairments, the

objective medical evidence revealed no objective evidence to support Gregorio’s

claims of pain and limitation. (Tr. 21-24). The ALJ explained that EMG studies

indicated normal findings. (Tr. 21). Similarly, the ALJ detailed Gregorio’s testimony

and allegations regarding other conditions which he did not find to constitute severe

impairments and articulated that those allegations were not supported by the

objective evidence, as noted above. The ALJ considered the opinion evidence of

record, including the findings of Dr. Miller, and the opinions of Dr. Long and Dr.

Wilson. (Tr. 22-24). The ALJ, however, was confronted by a record marked by

inconsistencies regarding Gregorio’s subjective allegations and objective findings

on examination, on MRI and on electrodiagnostic testing. Despite those

inconsistencies and the inconsistencies in Gregorio’s testimony, the ALJ found her

to be partially credible and limited Gregorio to a full range of light work, a finding

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which drew support from substantial evidence in this highly equivocal factual

record.

This RFC determination, in turn, led to the ALJ denying Gregorio’s claim

both at Step 4, finding that she could return to her past employment, and at Step 5,

finding that there were other jobs in the national economy she could perform. That

Step 5 determination rested, in part, upon the ALJ’s conclusion that Gregorio could

communicate in English and, while the record on this score was also marked by

conflicting evidence, substantial evidence in the form of Gregorio’s English

proficiency results at the time of her naturalization supported the factual

determination.

In closing, the ALJ’s assessment of the evidence in this case complied with

the dictates of the law and was supported by substantial evidence. This is all that the

law requires, and all that a claimant can demand in a disability proceeding. Thus,

notwithstanding the argument that this evidence might have been viewed in a way

which would have also supported a different finding, we are obliged to affirm this

ruling once we find that it is “supported by substantial evidence, ‘even [where] this

court acting de novo might have reached a different conclusion.’” Monsour Med.

Ctr. v. Heckler, 806 F.2d 1185, 1190–91 (3d Cir. 1986) (quoting Hunter Douglas,

Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential

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standard of review that applies to appeals of Social Security disability

determinations, we find that substantial evidence supported the ALJ’s evaluation of

this case.

IV. Conclusion

Accordingly, for the foregoing reasons, IT IS ORDERED that the final

decision of the Commissioner denying these claims is AFFIRMED.

An appropriate order follows.

/s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

Submitted this 16th day of September 2021.

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