Crossley v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LEE W. CROSSLEY,

Plaintiff, CIVIL ACTION NO. 3:20-CV-02298

v.

(MEHALCHICK, M.J.)

KILOLO KIJAKAZI,1

Defendant.

MEMORANDUM

This is an action brought under Section 1383(c) of the Social Security Act and 42

U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social

Security (hereinafter, “the Commissioner”) denying Plaintiff Lee W. Crossley (“Crossley”)’s

claims for a period of disability and disability insurance benefits and supplemental security

income (“SSI”) under Title XVI of the Social Security Act. (Doc. 1). 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. 10). For the following reasons, the Commissioner’s decision will be AFFIRMED.

I. BACKGROUND AND PROCEDURAL HISTORY

Crossley protectively filed an application for Title II benefits on February 25, 2014,

and an application for Title XVI benefits on March 17, 2016. (Doc. 15-4, at 5). In these

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be

substituted, therefore, for Andrew Saul as the defendant in this suit. No further action need

be taken to continue this suit by reason of the last sentence of section 205(g) of the Social

Security Act, 42 U.S.C. § 405(g).

applications, Crossley claimed disability beginning October 15, 2012. (Doc. 15-4, at 5).

Crossley’s claims were initially denied by the Social Security Administration (“SSA”) on

February 20, 2015. (Doc. 15-4, at 5). Crossley filed a request for a hearing before an

Administrative Law Judge (“ALJ”) on March 17, 2015, which was held on December 21,

2016, before ALJ Frank Barletta (“ALJ Barletta”). (Doc. 15-4, at 5). In a written decision

dated May 26, 2017, ALJ Barletta determined that Crossley was not disabled and therefore

not entitled to the benefits sought. (Doc. 15-4, at 2).

On August 31, 2018, Crossley protectively filed another application for Title XVI

benefits, alleging disability beginning May 24, 2017. (Doc. 15-6, at 2). The claim was initially

denied by the SSA on March 15, 2019. (Doc. 15-2, at 72). Crossley filed a request for a hearing

before an ALJ, which was held on October 2, 2019, before ALJ Charles A. Dominick (“ALJ

Dominick”). (Doc. 15-3, at 3). In a written decision dated January 22, 2020, the ALJ

determined that Crossley was not disabled and therefore not entitled to the benefits sought.

(Doc. 15-2, at 69). Crossley appealed the decision of the ALJ to the Appeals Council, who,

on October 8, 2020, denied Crossley’s request for review. (Doc. 15-2, at 2).

On December 8, 2020, Crossley commenced the instant action. (Doc. 1). The

Commissioner responded on May 13, 2021, providing the requisite transcripts from the

disability proceedings. (Doc. 14; Doc. 15). The parties then filed their respective briefs, with

Crossley alleging four errors warranting reversal or remand. (Doc. 19; Doc. 23; Doc. 31).

II. STANDARDS OF REVIEW

To receive benefits under Title XVI of the Social Security Act, 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

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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. § 1382c(a)(3)(A); 20 C.F.R. § 416.909. 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 significant numbers

in the national economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.905(a).2

A. ADMINISTRATIVE REVIEW

In evaluating whether a claimant is disabled as defined in the Social Security Act, the

Commissioner follows a five-step sequential evaluation process. 20 C.F.R. § 416.920(a).

Under this process, the Commissioner must determine, in sequence: (1) whether the claimant

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

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

claimant is able to do past relevant work, considering his or her residual functional capacity

(“RFC”); and (5) whether the claimant is able to do any other work that exists in significant

numbers in the national economy, considering his or her RFC, age, education, and work

experience. 20 C.F.R. § 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. 20 C.F.R. § 416.912(a). Once the claimant has established at step four that he or she

cannot do past relevant work, the burden then shifts to the Commissioner at step five to show

that jobs exist in significant numbers in the national economy that the claimant could perform

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

“anatomical, physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §

1382c(a)(3)(D).

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that are consistent with his or her RFC, age, education, and past work experience. 20 C.F.R.

§ 416.912(a)(1).

B. JUDICIAL REVIEW

The Court’s review of the Commissioner’s final decision denying a claimant’s

application for benefits is limited to determining whether the findings of the final decision

maker are supported by substantial evidence in the record. See 42 U.S.C. §§ 405(g), 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, 565 (1988) (internal

quotations omitted). The quantum of proof 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 if the ALJ ignores countervailing evidence or fails to resolve a

conflict created by such 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).

The question before the Court, therefore, is not whether Crossley was disabled, but

whether the Commissioner’s determination that Crossley was 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

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evidence.”); 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). “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). If “the ALJ’s findings

of fact . . . are supported by substantial evidence in the record,” the Court is bound by those

findings. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

III. THE ALJ’S DECISION

In a decision dated January 22, 2020, the ALJ determined Crossley “has not been

under a disability, as defined in the Social Security Act, since August 31, 2018, the date the

application was filed.” (Doc. 15-2, at 84). The ALJ reached this conclusion after proceeding

through the five-step sequential analysis required by the Social Security Act. See 20 C.F.R. §

416.920(a).

A. STEP ONE

At step one, an ALJ must determine whether the claimant is engaging in substantial

gainful activity (“SGA”). 20 C.F.R § 416.920(a)(4)(i). If a claimant is engaging in SGA, the

Social Security Regulations (“SSR”) deem them not disabled, regardless of age, education, or

work experience. 20 C.F.R. § 416.920(b). SGA is defined as work activity—requiring

significant physical or mental activity—resulting in pay or profit. 20 C.F.R. § 416.972. In

making this determination, the ALJ must consider only the earnings of the claimant. 20

C.F.R. § 416.974. The ALJ determined Crossley “has not engaged in [SGA] since August 31,

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2018, the application date.” (Doc. 15-2, at 74). Thus, the ALJ’s analysis proceeded to step

two.

B. STEP TWO

At step two, the ALJ must determine whether the claimant has a medically

determinable impairment that is severe or a combination of impairments that are severe. 20

C.F.R. § 416.920(a)(4)(ii). If the ALJ determines that a claimant does not have an

“impairment or combination of impairments which significantly limits [their] physical or

mental ability to do basic work activities, [the ALJ] will find that [the claimant] does not have

a severe impairment and [is], therefore not disabled.” 20 C.F.R. § 416.920(c). If a claimant

establishes a severe impairment or combination of impairments, the analysis continues to the

third step. Here, the ALJ found that the medical evidence of record established the presence

of the following medically determinable severe impairments: “status post fibrohistiocytic

sarcoma of the left elbow with complications including left radial neck fracture, vitamin D

deficiency, osteoarthritis of the hips, thoracic spine, and left knee, obesity, post-traumatic

stress disorder, and depression.” (Doc. 15-2, at 74). Additionally, the ALJ found that

Newcomb has the following non-severe impairments: gastro-esophageal reflux disease,

asthma, and allergies. (Doc. 15-2, at 74-75).

C. STEP THREE

At step three, the ALJ must determine whether the severe impairment or combination

of impairments meets or equals the medical equivalent of an impairment listed in 20 C.F.R.

Part 404, Subpt. P, App. 1 (20 C.F.R. §§ 416.920(a)(4)(iii), 416.925, 416.926). The sections in

this appendix are commonly referred to as “listings.” If the ALJ determines the claimant’s

impairment or impairments meet a listing, then the claimant is considered disabled. 20 C.F.R.

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§ 416.920(d). Otherwise, the ALJ must proceed to the fourth step of the analysis. 20 C.F.R. §

416.920(d). The ALJ considered listings 1.02 (major dysfunction of a joint(s)), 1.04 (disorders

of the spine), 12.04 (depressive, bipolar and related disorders), 12.06 (anxiety and obsessive-

compulsive disorders), and 12.15 (trauma- and stressor-related disorders). (Doc. 15-2, at 75).

Here, the ALJ determined that none of Crossley’s impairments, considered individually or in

combination, meet or medically equal the severity of a listed impairment. (Doc. 15-2, at 75).

D. RESIDUAL FUNCTIONAL CAPACITY

Between steps three and four, the ALJ determines the claimant’s residual functional

capacity (“RFC”), crafted upon consideration of the medical evidence provided. At this

intermediate step, the ALJ considers all claimant’s symptoms and “the extent to which [they]

can reasonably be accepted as consistent with the objective medical evidence and other

evidence.” 20 C.F.R. § 416.929(a). This involves a two-step inquiry according to which the

ALJ must (1) determine whether an underlying medically determinable mental impairment

or impairments could reasonably be expected to produce the claimant’s symptoms; and, if so,

(2) evaluate the intensity, persistence, and limiting effects of the claimant’s symptoms to

determine the extent to which they limit the claimant’s functional limitations. See 20 C.F.R.

§ 416.929(b)-(c).

Crossley alleged that his impairments caused the following symptoms: status post-

cancer of the upper arm, post-traumatic stress disorder (“PTSD”), pain in his knees, back

pain, chronic neck pain, depression, and anxiety. (Doc. 15-2, at 78). Crossley also alleged:

“difficulties lifting, squatting, bending, standing, walking, sitting, kneeling, climbing stairs

and using his hands;” “difficulties completing tasks;” “difficulties with household chores and

yardwork;” “difficulties sleeping due to panic attacks and bad dreams;” and “difficulties with

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concentration and attention.” (Doc. 15-2, at 78). After examining his statements and the

medical evidence, the ALJ found that Crossley’s impairments could reasonably be expected

to cause the alleged symptoms, but that his statements about the intensity, persistence, and

the limiting effects of the symptoms were not entirely consistent with the medical evidence

and other evidence in the record. (Doc. 15-2, at 79). The ALJ then went on to detail Crossley’s

medical records and treatment history. (Doc. 15-2, at 79-82).

Based on his consideration of the above referenced medical opinions and of the other

relevant evidence of record, the ALJ assessed that, during the relevant period, Crossley had

the RFC “to perform sedentary work,” but with the following limitations:

[Crossley] is to be given the opportunity to alternate between sitting and

standing at least every 30 minutes. [Crossley] is limited to occasional balancing,

stooping, kneeling, crouching, and climbing on ramps and stairs. [Crossley] is

to avoid crawling and climbing on ladders, ropes, and scaffolds. [Crossley] is

to avoid unprotected heights and dangerous moving machinery. [Crossley] is

to avoid overhead reaching with the bilateral upper extremities. [Crossley] is

limited to no more than frequent reaching in all other directions with bilateral

upper extremities. [Crossley] is limited to no more than occasional use of foot

controls. [Crossley] is to avoid concentrated exposure to dusts, fumes, gases,

and other pulmonary irritants. [Crossley] is to avoid exposure to extreme

temperatures, extreme humidity, wetness, and vibration. [Crossley] is limited

to simple routine tasks, but not at a production rate pace. [Crossley] is limited

to occupations requiring no more than simple work related decisions with no

more than occasional changes in the work setting. [Crossley] is limited to

occasional interaction with supervisors, coworkers and the public.

(Doc. 15-2, at 77-78).

E. STEP FOUR

Step four requires the ALJ to determine whether the claimant had, during the relevant

period, the RFC to perform the requirements of his or her past relevant work regardless of the

claimant’s age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iv). Past relevant

work is work that the claimant has done within the past 15 years, that was substantial gainful

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activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. §

416.920(a)(4)(iv). The ALJ considers whether the claimant retains the capacity to perform the

particular functional demands and job duties of the past relevant work, either as the claimant

actually performed it or as ordinarily required by employers throughout the national

economy. Garibay v. Comm’r of Soc. Sec., 336 F. App’x 152, 158 (3d Cir. 2009) (quoting SSR

82–6). “If the claimant can perform his [or her] past relevant work despite his limitations, he

[or she] is not disabled.” Hess, 931 F.3d at 202 (citing 20 C.F.R. § 404.1520(a)(4)(iv)); see also

20 C.F.R. § 416.920(a)(4)(iv).

Here, the ALJ determined Crossley is unable to perform any past relevant work. (Doc.

15-2, at 82). The ALJ noted Crossley’s past relevant work including positions as a material

handler, fast food cook, concrete laborer, steel laborer, and printer, but the exertional

requirements of each exceeded Crossley’s RFC. (Doc. 15-2, at 82).

F. STEP FIVE

At step five of the sequential analysis, the ALJ considers the claimant’s age, education,

and work experience to determine whether the claimant can make the adjustment to other

work. 20 C.F.R. § 416.920(a)(4)(v). If a claimant can adjust to other work, he or she will not

be considered disabled. 20 C.F.R. § 416.920(a)(4)(v). Here, considering Crossley’s age,

education, work experience, and RFC, the ALJ determined that there are jobs that exist in

significant numbers in the national economy that Crossley can perform. (Doc. 15-2, at 83). In

making this determination, the ALJ relied on the expertise of the vocational expert (“VE”),

who testified that Crossley could perform the requirements of occupations such as a sorter,

hand packer, and production laborer, which are occupations with open positions ranging from

13,000 to 28,000 nationally. (Doc. 15-2. at 83-84).

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Accordingly, the ALJ determined that Crossley was not disabled during the relevant

period and denied his application for benefits. (Doc. 15-2. at 84).

IV. DISCUSSION

On appeal, Crossley advances four main arguments. (Doc. 19, at 5). First, he asserts

that the ALJ’s decision is constitutionally defective because the Commissioner under whom

the ALJ issued the final decision serves a longer term than the President and is removable

only for cause, in violation of the separation of powers. (Doc. 19, at 5). Second, Crossley

contends that his 2014 application for social security benefits was denied by an ALJ who

lacked a constitutional appointment as required by the Appointments Clause; thus, the

previous case should be remanded for a hearing before a different, constitutionally-appointed

ALJ. (Doc. 19, at 5). Third, Crossley asserts that the ALJ erroneously rejected the opinions

of the treating physician and consultative psychologist. (Doc. 19, at 5). Fourth, Crossley

argues that the ALJ failed to present a hypothetical question containing all of Crossley’s

credibly established limitations to the VE. (Doc. 19, at 5). In response, the Commissioner

asserts that substantial evidence supports the ALJ’s decision and that Crossley has failed to

provide evidence demonstrating his disability or to explain how any alleged error by the ALJ

should have led to a favorable decision. (Doc. 23, at 13). For the following reasons, the Court

finds that the ALJ properly applied the law and that substantial evidence supports the ALJ’s

findings.

A. THE ALJ’S DECISION IS NOT CONSTITUTIONALLY DEFECTIVE.

Crossley first asserts that the SSA’s decision is constitutionally defective. (Doc. 19, at

5). Crossley alleges such because the Commissioner under whom the ALJ issued his final

decision serves a longer term than the President and is removable only for cause, violating the

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separation of powers. (Doc. 19, at 5). The Commissioner agrees that the Social Security Act

provision limiting the President’s authority to remove the Commissioner without good cause,

42 U.S.C. § 902(a)(3), violated the separation of powers. (Doc. 23, at 15). However, the

Commissioner argues that “without more, that conclusion does not support setting aside an

unfavorable SSA disability benefits determination.” (Doc. 23, at 15-16).

Crossley contends the government deprived him of a valid administrative adjudicatory

process. In support of his argument, Crossley relies on the Supreme Court decisions in Collins

v. Yellen, 141 S. Ct. 1761 (2021), and Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020). (Doc. 31,

at 10). In Seila Law, the Supreme Court held the Consumer Financial Protection Bureau's

(“CFPB”) removal structure, which allowed for the CFPB director to be removed by the

President only for “inefficiency, neglect of duty, or malfeasance of office,” 12 U.S.C. §

5491(c)(3), violated the separation of powers by insulating the director from removal by the

President. Seila Law, 140 S. Ct. at 2197. The following year, in Collins, the Court held a

provision limiting the President to remove the director of the Federal Housing Finance

Agency (“FHFA”) only for cause violated the separation of powers. Collins, 141 S. Ct. at 1783

(holding that “Seila Law is all but dispositive”).

Applying the holdings in Seila Law and Collins here makes it clear that the provision

for removal of the Commissioner of Social Security, 42 U.S.C. § 902(a)(3), violates the

separation of powers. See Seila Law, 140 S. Ct. at 2197; Collins, 141 S. Ct. at 1783. The

Commissioner, a single officer at the head of an administrative agency, is removable only for

cause. See 42 U.S.C. § 902(a)(3). This statutory clause suffers from the same defect as the

removal provisions at issue in Seila Law and Collins, and thus violates the separation of powers.

See Seila Law, 140 S. Ct. at 2197; Collins, 141 S. Ct. at 1783; see also Office of Legal Counsel,

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Constitutionality of the Comm’r of Soc. Sec.'s Tenure Protection, 2021 WL 2981542, at *7 (July 8,

2021).

Here, Crossley argues that he was deprived of a valid administrative adjudicatory

proves because, under 42 U.S.C. § 405(b)(1), only the Commissioner of SSA can make

findings of fact and issue final decisions as to benefits eligibility. (Doc. 19, at 7); see 42 U.S.C.

§ 902(a)(3). Specifically, Crossley argues that:

The ALJ’s delegation of authority to hear and decide [Crossley’s] claim came

from Commissioner Saul and is therefore constitutionally defective. Similarly,

the ALJ decided this case under regulations promulgated by Mr. Saul when he

had no constitutional authority to issue those rules. Accordingly, a

presumptively improper legal standard was utilized to adjudicate this disability

claim at the administrative level.

(Doc. 19, at 7) (citations omitted).

In response, the Commissioner agrees that 42 U.S.C. § 902(a)(3) violates the separation of

powers to the extent it is construed as limiting the President’s authority to remove the

Commissioner without cause. (Doc. 23, at 15). The Commissioner argues that in Collins, the

Supreme Court explained that even where an unconstitutional statutory removal restriction

exists, a plaintiff seeking relief on that basis must show that the restriction caused him harm.

(Doc. 23, at 16).

First, the removal provision does not render the Commissioner’s appointment invalid

and thus, does not automatically void the ALJ’s actions under the Commissioner. In Collins,

the Court found the defective removal procedure did not render the FHFA's actions void from

the outset. 141 S. Ct. at 1787 (“Although the statute unconstitutionally limited the President's

authority to remove the confirmed Directors, there was no constitutional defect in the

statutorily prescribed method of appointment to that office. As a result, there is no reason to

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regard any of the actions taken by the FHFA [challenged on appeal] as void.”). The ALJ who

denied Crossley’s disability claim was not appointed by a Commissioner subject to Section

902(a)(3)’s removal restriction. (Doc. 23, at 16). Rather, the ALJ was appointed by an Acting

Commissioner of Social Security whom the President could remove at any time. (Doc. 23, at

16). Because an Acting Commissioner does not have the same removal restriction as the

Commissioner and because the ALJ was properly appointed, Crossley's argument is not

persuasive in this case. See Collins, 141 S. Ct. at 1781 (because removal restrictions of the

FHFA applied only to the Director, “any constitutional defect in the provision restricting the

removal of a confirmed Director would not have harmed [the plaintiffs], and they would not

be entitled to any relief” by actions of an Acting Director who enjoyed no such protections);

see also Boger v. Kijakazi, No. 1:20-CV-00331, 2021 WL 5023141, at *3 n.4 (W.D.N.C. Oct.

28, 2021) (finding that “Plaintiff's constitutional ‘removal restriction’ argument is likely not

even applicable to this case because ALJ Howard was appointed by an Acting Commissioner

of Social Security who could be removed from that office at the President's discretion.”).3

Second, Crossley has not demonstrated that the unconstitutionality of 42 U.S.C. §

903(a)(3) inflicted compensable harm. See Boger, 2021 WL 5023141, at *3 (finding that the

ALJ's decision was not constitutionally defective where “Plaintiff simply argues that all

3 Other courts determining the issue of traceability for purposes of jurisdiction have

disagreed with this position as it relates to the SSA. See Dante v. Saul, No. 20-CV-0702, 2021

WL 2936576, at *8 (D.N.M. July 13, 2021) (finding that “the plain language of § 902(a)

suggests that the Presidential removal restrictions may apply not only to a Senate-confirmed

Commissioner, but also to any individual serving in the office of Commissioner, including an

Acting Commissioner”), but see Collins, 141 S. Ct. at 1783 (noting that “we generally presume

that the President holds the power to remove at will executive officers and that a statute must

contain ‘plain language to take [that power] away’” when discussing whether an acting

director is a confirmed director) (quoting Shurtleff v. U.S., 189 U.S. 311, 316 (1903)).

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actions taken by the Commissioner – and in turn his appointed ALJ's – are void due to the

unconstitutional removal provision[,]” but “offers no evidence to show that there is a nexus

between the unconstitutional removal restriction and the denial of his application for

disability benefits”); see also Robinson v. Kijakazi, No. 1:20-CV-00358, 2021 WL 4998397, at

*3 (W.D.N.C. Oct. 27, 2021) (same); Amanda B. v. Comm'r of Soc. Sec., No. 3:20-CV-00434,

2021 WL 4993944, at *9-10 (D. Or. Oct. 26, 2021) (concluding that “the authorities cited by

Plaintiff in her supplemental briefing do not affect the disposition of this matter” where

Plaintiff “does not allege ‘the SSA Commissioner took any action that is in any way related

to the ALJ's decision’ or the decision by the Appeals Council.”).

In Collins, the Court found it was “possible for an unconstitutional provision to inflict

compensable harm,” and remanded to the lower court to determine whether the removal

provision “inflicted harm.” 141 S. Ct. at 1788-89. In that case, the action challenged by

plaintiffs was the directors’ adoption and implementation of an amendment (the “Third

Amendment”) to certain financial agreements that “materially changed the nature of the

agreements” and resulted in the companies in which plaintiffs were shareholders transferring

to the U.S. Treasury “at least $124 billion dollars more than the companies would have had

to pay” under the prior form of the agreements. Collins, 141 S. Ct. at 1774. The Third

Amendment was not subject to full judicial review and the Supreme Court thus found that

fact-finding by the lower courts was required in order to determine whether plaintiffs suffered

harm directly as a result of the FHFA director's unconstitutional tenure protection. Collins,

141 S. Ct. at 1785, 1789. Relief is available in removal challenges only where officials subject

to the challenged removal restrictions cause the alleged injuries, and where those restrictions

themselves caused “compensable harm” upon plaintiffs. Collins, 141 S. Ct. at 1789.

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By contrast, in this case, the action challenged by Crossley is the ALJ's decision

denying benefits. Crossley has alleged no direct action by former Commissioner Andrew Saul

and no involvement—or even awareness—by the former President in the ALJ's decision. Cf.

Collins, 141 S. Ct. at 1802 (Kagan, J. concurring) (“[G]iven the majority's remedial analysis,

I doubt the mass of SSA decisions—which would not concern the President at all—would

need to be undone. When an agency decision would not capture a President's attention, his

removal authority could not make a difference.”). Crossley cannot show how the President’s

supposed inability to remove the Commissioner without cause might have affected any ALJ’s

disability benefits decision, much less the decision on his specific claim. As the Commissioner

points out in his reply brief, holding Crossley to a lower bar would provide him an

“unwarranted remedial windfall,” in which many thousands of other disappointed claimants

could receive the same relief. (Doc. 23, at 25). Further, Crossley has made no clear allegation

that Commissioner Saul's unconstitutional tenure resulted in compensable harm to him. The

ALJ's decision was based upon an uncontested factual record and the application of

established law, including case law, which generally cannot be changed by the Commissioner.

There is no allegation suggesting a direct nexus between the adjudication of Crossley's

disability claim by the ALJ and the alleged separation of powers violation in the removal

statute that applies to the Commissioner. Crossley's allegations merely express general

dissatisfaction with the outcome of the adjudication of his SSA disability claim.

Lastly, as the Commissioner notes, several constitutional remedial doctrines support

the denial of Crossley’s request for a rehearing. The harmless error doctrine dictates that

retrospective relief is only appropriate where a statutory provision that violates the

Constitution caused the plaintiff some harm. (Doc. 23, at 27). Here, because Crossley cannot

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show that the Commissioner’s tenure protection affected the ALJ’s decision on his claim, his

request for rehearing is denied. Next, “[t]he de facto doctrine springs from the fear of the

chaos that would result from multiple and repetitious suits challenging every action taken by

every official whose claim to office could be open to question, and seeks to protect the public

by insuring the orderly functioning of the government despite technical defects in title to

office.” Ryder v. United States, 515 U.S. 177, 180 (1995). Here, however, the Commissioner’s

appointment and the appointment of the presiding ALJ were entirely proper. To hold

otherwise would risk unwinding untold thousands of SSA disability determinations,

endangering the efficient and orderly adjudication of benefits by the SSA and harming the

interests of those whose disability claims have yet to be adjudicated— precisely the type of

“chaos” the de facto officer doctrine was designed to prevent. Collins, 141 S. Ct. at 1802

(Kagan, J., concurring).

Lastly, the rule of necessity states that a judge must exercise adjudicatory responsibility

over a matter, notwithstanding some defect in his or her title or authority, where all other

judges share the same defect. See Philadelphia v. Fox, 64 Pa. 169, 185 (Pa. 1870). Here, it could

not have been an error for the deciding ALJ to hear Crossley’s disability claim. If the

Commissioner’s tenure protection somehow filters down to affect one ALJ within the entire

SSA, it affects all such ALJs. To hold that the assigned ALJ should have declined to

adjudicate Crossley’s claim for that reason would have meant that all other ALJs must decline

to adjudicate as well for the same reason. Such widespread action would have left Crossley

without a forum to adjudicate his claim and it would have denied him even the opportunity

to qualify for benefits.

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Accordingly, Crossley has not alleged any connection between the unconstitutional

limit on the Commissioner of Social Security’s removal and the ALJ’s decision denying

Crossley’s benefits. See Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1138 (9th Cir. 2021) (“[T]here

is no link between the ALJ's decision awarding benefits and the allegedly unconstitutional

removal provisions. And nothing commands us to vacate the decisions below on that

ground.”). Thus, while the removal clause in § 902(a)(3) violates the separation of powers, it

does not independently require the Court to reverse the ALJ's decision absent a showing of

compensable harm.

B. CROSSLEY DOES NOT HAVE A RIGHT TO REVIEW ALJ BARLETTA’S 2017 DECISION.

Crossley asserts that the ALJ that heard his 2014 application for Social Security

benefits lacked a constitutional appointment as required by the Appointments Clause, and

this case should be remanded and that a new hearing be carried out before a different,

constitutionally-appointed ALJ regarding Crossley’s previous Social Security benefits

applications. (Doc. 19, at 7). The Commissioner argues that Crossley never raised an

Appointments Clause challenge to ALJ Barletta’s 2017 decision, either during administrative

proceedings or in a timely appeal to federal court. (Doc. 23, at 35). Thus, as ALJ Barletta’s

decision became binding on all parties sixty days after the notice of the decision was issued,

the Commissioner asserts that Crossley “cannot now challenge any perceived error or defect

in the 2017 decision, which he never appealed.” (Doc. 23, at 35-36).

Exclusive jurisdiction over a decision to deny or suspend Social Security benefits arises

from 42 U.S.C. § 405(g), which provides that “[a]ny individual, after any final decision of the

Commissioner of Social Security made after a hearing to which he was a party[,] ... may

obtain a review of such decision by a civil action ...”. 42 U.S.C. § 405(g). As a general rule,

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judicial review is barred unless the Commissioner has issued a “final decision” following a

hearing. Fitzgerald v. Apfel, 148 F.3d 232, 234 (3d Cir. 1998). To obtain a judicially reviewable

final decision, a claimant must first complete the following four-step administrative review

process: (1) the claimant receives an initial determination; (2) the claimant requests

consideration of an unfavorable initial determination; (3) if the request for reconsideration is

denied, the claimant requests a hearing before an ALJ; and (4) the claimant, if unsatisfied

with the ALJ's determination, requests a review by the Appeals Council. 20 C.F.R. §

416.1400(a); Callender v. Soc. Sec. Admin., 275 F. App'x 174, 175 (3d Cir. 2008). Failure to

exhaust each step of this process deprives a court of subject matter jurisdiction. Sims v. Apfel,

530 U.S. 103, 106–07 (2000).

Here, in a written decision dated May 26, 2017, ALJ Barletta denied Crossley’s

applications for disability insurance benefits and supplemental security income. (Doc. 15-4,

at 2). The SSA notified Crossley that he had a right to file an appeal of the decision with the

Appeals Council within sixty days of the day that Crossley received the notice of the

unfavorable decision. (Doc. 15-4, at 2). The notice of decision also warned Crossley that he

had a right to file a new application, but by filing a new application instead of appealing the

unfavorable decision, Crossley “might lose some benefits or not qualify for benefits at all.”

(Doc. 15-4, at 3). There is no evidence in the record to suggest that Crossley filed for review

of ALJ Barletta’s decision with the Appeals Council or in federal court. Instead, Crossley filed

another application for Title XVI benefits on August 31, 2018, alleging disability beginning

May 24, 2017. (Doc. 15-6, at 2). Thus, ALJ Barletta’s became a final agency decision that is

binding on all the parties sixty days after the notice of decision was mailed to Crossley. See 42

U.S.C. § 405(g); 20 C.F.R. §§ 416.1455(b), 416.1487.

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Crossley asserts that because he “never had the hearing he requested in March 2015

before a constitutionally appointed ALJ, the Court should remand his case for a new hearing

before a different, constitutionally appointed ALJ with respect to his claims for DIB and SSI.”

(Doc. 19, at 8). The Commissioner responds that Crossley does not offer any rationale as to

why he is entitled to remand pursuant to the Appointments Clause or why he failed to appeal

ALJ Barletta’s decision in the first place. (Doc. 23, at 36). The Court finds that remand on

this issue is not warranted. Crossley only brings this Appointments Clause challenge in this

action, which deals with a decision rendered by ALJ Dominick on January 22, 2020, denying

Crossley’s request for benefits.4 (Doc. 15-2, at 69). ALJ Dominick addressed Crossley’s

previous applications for benefits in his decision, stating “[a]s the current application alleges

on onset date of disability of May 24, 2017, the undersigned finds no basis to reopen these

prior applications.” (Doc. 15-2, at 72).

Based on the foregoing, the record clearly demonstrates that Crossley has failed to

satisfy the requirements of § 405(g) and 20 C.F.R. § 416.1400(a) by not seeking Appeals

Council review of ALJ Barletta’s decision to deny benefits. Consequently, this Court lacks

jurisdiction over this action. See, e.g., Sims, 530 U.S. at 107 (“If a claimant fails to request

review from the Council ... such a claimant may not obtain judicial review because he has

failed to exhaust administrative remedies.”) (internal citations omitted).

4 On July 12, 2018, the Commissioner ratified the appointment of all ALJs. See SSR

19-1p. Thus, at all times relevant to the decision rendered on January 22, 2020, ALJ Dominick

has been properly appointed by the Commissioner of Social Security. The Acting

Commissioner’s final decision rendered on October 8, 2020, was issued by a properly-

appointed ALJ. Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018).

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C. THE ALJ’S CONSIDERATION OF THE MEDICAL OPINIONS IS SUPPORTED BY

SUBSTANTIAL EVIDENCE IN THE RECORD.

Crossley submits that the ALJ rejected the opinions of his primary care physician, Ivor

Lewis, M.D. (“Dr. Lewis”), and the consultative psychologist, Jennifer Betts, PsyD (“Dr.

Betts”). (Doc. 19, at 8-18). The Commissioner responds that the ALJ followed the applicable

regulatory framework, discussing the supportability and consistency of both opinions and that

substantial evidence supports the ALJ’s fact-finding. (Doc. 23, 39-45).

The Third Circuit has ruled that the ALJ – not treating or examining physicians or

State agency consultants – must make the ultimate disability and RFC determination.

Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). “[RFC]” is defined as that

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

impairment(s).” Burnett v. Comm’r of Soc. Sec., 220 F.3d 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. §§ 416.920, 416.945; SSR 96-8p. When determining an individual’s

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

laboratory findings, medical source statements, and a claimant’s medical history. SSR 96-8p;

see Mullin v. Apfel, 79 F. Supp. 2d 544, 548 (E.D. Pa. 2000). “[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 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 this standard to the present record, the Court finds substantial evidence to support

the ALJ’s RFC determination.

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As this matter involves a claim filed after March 27, 2017, the new regulatory

framework governing the evaluation of medical opinions applies to the ALJ’s evaluation of

the medical opinions in the record. See Revisions to Rules Regarding the Evaluation of

Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017) (technical errors corrected by 82 Fed.

Reg. 15,132-01 (Mar. 27, 2017)); see also 82 Fed. Reg. 15263 (March 27, 2017); 82 Fed. Reg.

16869 (corrective notice) (explaining that SSR 96-2p and 96- 5p do not apply to newly filed

or pending claims after March 27, 2017). Under the new regulations, rather than assigning

weight to medical opinions, the Commissioner will articulate “how persuasive” he or she

finds the medical opinions. 20 C.F.R. § 416.920c(b). And the Commissioner's consideration

of medical opinions is guided by the following factors: supportability; consistency;

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

frequency of examinations, the purpose of the treatment relationship, the extent of the

treatment relationship, and the examining relationship); specialization of the medical source;

and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 416.920c(c).

The most important of these factors is the “supportability” of the opinion and the

“consistency” of the opinion. 20 C.F.R. § 416.920c(b)(2).

The ALJ must explain how he or she considered the “supportability” and

“consistency” of a medical source's opinion. 20 C.F.R. § 416.920c(b)(2). Generally, the ALJ

may, but is not required to, explain his or her consideration of the other factors, but if there

are two equally persuasive medical opinions about the same issue that are not exactly the

same, then the ALJ must explain how he or she considered the other factors. 20 C.F.R. §

416.920c(b)(3). To facilitate judicial review, the ALJ's decision must be accompanied by “a

clear and satisfactory explication of the basis on which it rests” and the ALJ must indicate

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

certain evidence. Cotter v. Harris, 642 F.2d 700, 704, 706-707 (3d Cir. 1981). An ALJ need not

undertake an exhaustive discussion of all the evidence or “use particular language or adhere

to a particular format in conducting his analysis.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir.

2004); see Hur v. Barnhart, 94 F. App'x 130, 133 (3d Cir. 2004) (“There is no requirement that

the ALJ discuss in his opinion every tidbit of evidence included in the record.”). However, an

ALJ must ensure “sufficient development of the record and explanation of findings to permit

meaningful review.” Jones, 364 F.3d at 505; see, e.g., Rivera v. Comm'r of Soc. Sec., 164 F. App’x

260, 262 (3d Cir. 2006) (“The only requirement is that, reading the ALJ's decision as a whole,

there must be sufficient development of the record and explanation of findings.”).

On February 6, 2019, Dr. Betts conducted a mental status evaluation of Crossley.

(Doc. 15-9, at 37). Dr. Betts opined that Crossley’s demeanor and responsiveness to questions

were cooperative but depressed, and that his manner of relating, social skills, and overall

presentation was fair. (Doc. 15-9, at 39). Dr. Betts reported that Crossley described his mood

as depressed and that, possibly due to limited cognitive functioning, Crossley has limited

attention and concentration, impaired recent and remote memory skills, poor insight, and

poor judgment. (Doc. 15-9, at 39). Dr. Betts diagnosed Crossley with major depressive

disorder, current episode, moderate with anxious distress; PTSD; intellectual disability,

provisional; and specific learning disorder, provisional. (Doc. 15-9, at 40). In a questionnaire

assessing Crossley’s ability to do work-related activities based on her medical opinion, Dr.

Betts opined that Crossley has no limitations in understanding and remembering simple

instructions, mild limitations in carrying out simple instructions, and moderate limitations in

making judgments on simple work-related decisions and understanding and remembering

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complex instructions. (Doc. 15-9, at 42). Further, Dr. Betts opined that Crossley has marked

limitations in his ability to carry out complex instructions and make judgments on complex

work-related decisions. (Doc. 15-9, at 42). Dr. Betts also opined that Crossley has marked

limitations in his ability to interact appropriately with supervisors, co-workers, and the public

and to respond appropriately to usual work situations and changes in a routine work setting.

(Doc. 15-9, at 43).

On October 1, 2019, Dr. Lewis submitted a questionnaire assessing Crossley’s ability

to do work-related activities based on his medical opinion. (Doc. 15-9, at 119). Dr. Lewis

opined that Crossley could occasionally and frequently lift and carry less than ten pounds.

(Doc. 15-9, at 119). He noted that Crossley could stand and walk less than two hours and

could sit for about two hours during an eight-hour day. (Doc. 15-9, at 119). Dr. Lewis opined

that Crossley would need to change positions after sitting for ten minutes and standing for

five minutes, the opportunity to shift at will from sitting or standing/walking, and to lie down

at unpredictable intervals two to four times during a work shift. (Doc. 15-9, at 119-20). To

support the limitations he described, Dr. Lewis said that Crossley experiences pain, stiffness,

decreased range of motion, and decreased strength. (Doc. 15-9, at 120). Dr. Lewis also opined

that Crossley could occasionally climb stairs, but never twist, stoop, crouch, or climb stairs.

(Doc. 15-9, at 120). Dr. Lewis noted that Crossley’s handling, feeling, and pushing/pulling

functions were affected by his impairments, but his handling and fingering functions were not

affected. (Doc. 15-9, at 120). Dr. Lewis opined that Crossley should avoid concentrated

exposure to extreme heat, noise, dust, fumes, odors, gases, and poor ventilation, and should

avoid even moderate exposure to extreme cold, wetness, humidity, and hazards (machinery,

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heights, etc.). (Doc. 15-9, at 120). Lastly, Dr. Lewis opined that Crossley would be absent

from work more than three times per month due to his impairments. (Doc. 15-9, at 120).

The ALJ properly applied the new set of Social Security Regulations for evaluating

medical evidence that eliminates the hierarchy of medical opinions and states that an ALJ

will not defer to any medical opinions, even those from treating sources. (Doc. 14-2, at 25-

26); see 220 C.F.R. § 416.920c(a). In determining whether the claimant is disabled, the ALJ

must “consider all [of the claimant’s] symptoms, including pain, and the extent to which [the

claimant’s] symptoms can reasonably be accepted as consistent with the objective medical

evidence and other evidence.” 20 C.F.R. § 416.929(a); see Williams, 970 F.2d at 1186

(plaintiff’s “subjective complaints must be substantiated by medical evidence.”). Additionally,

in evaluating the intensity and persistence of pain and other symptoms, the ALJ should

consider the claimant's daily activities; location, duration, frequency and intensity of pain;

precipitating and aggravating factors; type, dosage, effectiveness, and side effects of

medications; treatment other than medication; and other measures the claimant uses to

address the pain or other symptoms. 20 C.F.R. § 416.929(c)(3). “To establish disability, there

must be objective medical evidence from an acceptable medical source showing that the

claimant has a medical impairment which could reasonably be expected to produce the pain

or other symptoms alleged and that leads to the conclusion that the claimant is disabled when

considered with the other evidence of record.” Stancavage v. Saul, 469 F.Supp.3d 311, 337

(M.D. Pa. 2020).

Evaluating the medical opinions, the ALJ found that the opinions of Dr. Lewis and

Dr. Betts were not persuasive. (Doc. 15-2, at 81-82). First, the ALJ explained that Dr. Lewis’s

opinion is not well supported by the overall medical evidence of record, including diagnostic

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test results or clinical findings the ALJ discussed earlier in his decision. (Doc. 15-2, at 81).

Specifically, the ALJ stated that “Dr. Lewis’ examinations continually noted [Crossley] to

have normal range of motion, no tenderness, normal strength, no tremor, no cranial nerve

deficit, and normal gait and coordination.” (Doc. 15-2, at 81). For example, Dr. Lewis opined

that Crossley could frequently carry less than ten pounds, due to decreased strength, and never

perform the postural activities of twisting, stooping, or crouching, due to decreased range of

motion. (Doc. 15-9, at 119). However, Dr. Lewis’s treatment notes state that Crossley’s

strength was routinely “normal” and that he had a “normal range of motion.” (Doc. 15-9, at

87; Doc. 15-9, at 91; Doc. 15-9, at 95). For those reasons, the ALJ found that Dr. Lewis’s

opinion was not supported by the medical evidence. (Doc. 15-2, at 81).

As to consistency, the AJ found that “Dr. Lewis’ opinions, especially in regards to

exertional limitations, an overstatement and not supported by the medical or non-medical

evidence of record.” (Doc. 15-2, at 81). For example, Dr. Lewis opined that Crossley’s ability

to handle, feel, and push/pull was limited. (Doc. 15-9, at 120). However, earlier in his

decision, the ALJ considered Crossley’s activities of daily living and noted that Crossley

reported he was able to independently cook, clean, do laundry, shop, shower, bathe, and dress

himself, as well as care for his mother, work on his car, walk his dog, and play video games.

(Doc. 15-2, at 8). The ALJ stated that while he acknowledged that Crossley “has some

limitations performing these activities, and while none of these activities is dispositive, taken

together and considered in conjunction with the above medical evidence of record, they

suggest that [Crossley] can perform work within the above parameters on a sustained and

continuous basis.” (Doc. 15-2, at 81); see 20 C.F.R. § 416.929(c)(3)(i) (“Factors relevant to

your symptoms, such as pain, which we will consider include: (i) Your daily activities”); see

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also Seney v. Comm’r of Soc. Sec., 585 F. App’x 805, 809 (3d Cir. 2014) (affirming the ALJ’s

decision to consider the claimant’s “daily functions, including managing her own personal

care, cooking, childcare, cleaning, and shopping,” when evaluating subjective complaints).

Further, the ALJ found that Dr. Lewis’s opinion was inconsistent with the medical record.

The ALJ reviewed other medical opinions and objective medical examinations and found

that “[p]hysical examinations routinely note [Crossley] to have normal range of motion, no

tenderness, normal strength, no tremor, no cranial nerve deficit, and normal gait and

coordination.” (Doc. 15-2, at 79). Thus, the ALJ properly evaluated Dr. Lewis’s opinion

according to the requirements of Social Security regulations.

With regards to Dr. Betts’ opinion, the ALJ found that Dr. Betts’ opinion “is not well

supported by the overall medical evidence, including the diagnostic test results or the findings

from objective mental examinations.” (Doc. 15-2, at 82). Discussing supportability, the ALJ

explained that Dr. Betts’ opinion relied “solely and exclusively on one examination” of

Crosley, “and not upon objective long-term observations and examinations.” (Doc. 15-2, at

82); see Northington v. Berryhill, No. 17-2922, 2018 WL 2172565, at *4 (E.D. Pa. Feb. 27, 2018)

(substantial evidence supported ALJ’s finding that medical opinion was entitled to little

weight “in light of the brief and limited nature” of the physician’s treatment of the plaintiff).

Regarding the consistency of Dr. Betts’ opinion, the ALJ found that Dr. Betts’ one-time

assessment of Crossley was not persuasive in relation to Crossley’s longitudinal mental health

treatment records. (Doc. 15-2, at 82). For example, the ALJ noted that his formal mental

health counseling records found Crossley to have a depressed mood and at times flat affect,

but that he was otherwise well-groomed, cooperative, talkative, with good eye contact, soft

and slow speech, and full orientation. (Doc. 15-2, at 82). The ALJ stated that those treatment

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records “would support [Crossley] performing unskilled work,” but “would not support any

marked limitation findings.” (Doc. 15-2, at 82). Thus, the ALJ concluded that Dr. Betts’

opinion was not persuasive. (Doc. 15-2, at 82).

Crossley asserts that the ALJ erroneously found that he was able to perform sedentary

work based on the ALJ’s lay interpretation of the medical evidence, “without the support of

any medical opinion of record.” (Doc. 19, at 13-14). Relying on Doak v. Heckler, 790 F.2d 26,

29 (3d Cir. 1986), Crossley argues that no medical opinion suggested Crossley could perform

sedentary work, so the ALJ’s RFC is unsupported by substantial evidence. (Doc. 19, at 14).

In Doak, The Commissioner avers, and the Court agrees, that Crossley’s reliance on Doak is

misplaced because the Doak decision predates Social Security regulatory amendments and the

ALJ is not prohibited from making an RFC determination even if no medical opinion has

specifically made the same findings. (Doc. 23, at 42-43); see Cummings v. Colvin, 129 F. Supp.

3D 209, 214-17 (W.D. Pa. 2015) (“[R]eliance on Doak and the other cases cited in [plaintiff's]

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

physician is misguided.”).

In a case involving the ALJ’s reliance on, or departure from treating medical opinion

support, or in a case involving the lack of medical opinion evidence altogether, the ALJ’s

decision must be accompanied by “a clear and satisfactory explication of the basis on which

it rests.” Cotter, 642 F.2d at 704; see Rathburn v. Berryhill, 3:17-CV-00301, 2018 WL 1514383,

at *6-7 (M.D. Pa. Mar. 12, 2018) (substantial evidence did not support ALJ’s RFC assessment

where ALJ did not explain what records he relied on to arrive at the limitations). Here, the

ALJ specifically addressed findings made by each physician and consultative examiner,

incorporating their explanations into Crossley’s RFC, as well as Crossley’s subjective

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symptom allegations in formulating his RFC determination, which accounted for Crossley’s

mental and physical limitations. (Doc. 15-2, at 77-78). Additionally, contrary to Crossley’s

assertion, on March 14, 2019, the state agency physician, David Hutz, M.D. (“Dr. Hutz”),

opined that Crossley demonstrates an RFC for sedentary work. (Doc. 15-4, at 38). The ALJ

found that Dr. Hutz’s opinion was persuasive because “it is generally supported by and

consistent with the medical evidence of record and activities of daily living previously

discussed.” (Doc. 15-2, at 80). The ALJ provided a thorough explanation for making his RFC

determination and affording little weight to the medical opinions of Dr. Lewis and Dr. Betts.

See Horodenski, 215 F. App’x at 189.

In reconciling the contrasting medical evidence and medical opinions of record with

the inconsistencies in Crossley’s abilities and limitations, the ALJ properly concluded that

Dr. Lewis’s and Dr. Betts’ opinions were “not persuasive” and “not well supported by the

overall medical evidence.” (Doc. 15-2, at 81-82). It appears that Crossley is requesting that

this Court re-weigh the evidence, which this Court cannot do. See Rutherford, 399 F.3d at 552

(“In the process of reviewing the record for substantial evidence, we may not ‘weigh the

evidence or substitute our own conclusions for those of the fact-finder.”). Accordingly, the

Court finds that substantial evidence supports the ALJ’s consideration of the medical opinions

of Dr. Lewis and Dr. Betts.

D. THE ALJ’S HYPOTHETICAL QUESTION TO THE VE IS SUPPORTED BY SUBSTANTIAL

EVIDENCE.

Lastly, Crossley argues that the ALJ’s hypothetical questions posed to the VE failed

to incorporate all of his credibly-established limitations, so the VE’s response cannot

constitute substantial evidence of work available in the national economy for Crossley. (Doc.

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19, at 18-19). Crossley also argues that the VE’s testimony in response to the ALJ’s

hypothetical question did not constitute substantial evidence of jobs in significant numbers

that Crossley could perform because the VE could not provide the exact number of jobs

available for “ampoule sealer.” (Doc. 19, at 20). The Commissioner avers that he ALJ

submitted a proper hypothetical question to the VE that included all of Crossley’s credibly-

established functional limitations. (Doc. 23, at 47). Further, the Commissioner asserts that

the VE was not obligated to provide the exact number of jobs available for “ampoule sealer”

and that “[e]ven if the Ampoule Sealer job did not exist in significant numbers, [Crossley]

could still perform the representative jobs of sorter and production laborer, to which

[Crossley] has raised no objections.” (Doc. 23, at 48).

At step five of the sequential evaluation process, the ALJ considers the claimant's age,

education, and work experience to determine whether the claimant can make the adjustment

to other work by posing a hypothetical question(s) to the VE. Chrupcala v. Heckler, 829 F.2d

1269, 176 (3d Cir. 1987); see also Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005);

Ramirez v. Barnhart, 372 F.3d 546, 552-55 (3d Cir. 2004) (the ALJ need only include in the

hypothetical questions impairments that are supported by the record). “A hypothetical

question posed to the [VE] must reflect all of the claimant's impairments that are supported

by the record; otherwise the question is deficient and the [VE]'s answer to it cannot be

considered substantial evidence.” Chrupcala, 829 F.2d at 1276; see also Rutherford, 399 F.3d at

554; Ramirez, 372 F.3d at 552-55. The ALJ, however, is not required to submit to the [VE]

every impairment alleged by a claimant. Rutherford, 399 F.3d at 554. “[S]uch references to ‘all

impairments’ encompass only those that are medically established.” Rutherford, 399 F.3d at

554. Thus, the question posed to the ALJ must accurately convey to the VE all of a claimant's

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credibly established limitations. Rutherford, 399 F.3d at 554 (quoting Plummer, 186 F.3d at

431).

The ALJ did not err in his hypothetical question to the VE. Crossley argues that the

hypothetical questions erroneously omitted the limitations assessed by Dr. Lewis and Dr.

Betts, which the ALJ should have adopted. (Doc. 19, at 19). Crossley contends that Dr.

Lewis’s and Dr. Betts’ assessed limitations, if credited, would have compelled a finding of

disability, but the ALJ omitted these limitations from his hypothetical questions. (Doc. 19, at

19). The Commissioner responds that the ALJ was under no obligation to include the

limitations assessed by Dr. Lewis and Dr. Betts because the ALJ reasonably found that the

opinions of Dr. Lewis and Dr. Betts were not persuasive. (Doc. 23, at 46).

The ALJ was not required to include all of the limitations assessed by Dr. Lewis and

Dr. Betts. The ALJ was only required to include all of Crossley’s credibly established

limitations that are supported by the record. See Rutherford, 399 F.3d at 554; Plummer, 186

F.3d at 431. Further, as discussed supra, the Court has found that the ALJ properly assessed

the opinions of Dr. Lewis and Dr. Betts and determined that they were not persuasive. (Doc.

15-2, at 81-82). Therefore, the Court finds that the ALJ's hypothetical questions posited to the

VE adequately set forth all of Crossley’s credibly established limitations.

Crossley also avers that “the [VE] conceded on cross-examination that she could not

provide numbers of the jobs to which she testified in response to the ALJ’s hypothetical

because the only data available is for broad classifications such as “hand packagers,[”] and

“[t]here’s no specific data for individual DOT job titles” such as ampoule sealer. (Doc. 19, at

19). Accordingly, Crossley argues that “the jobs to which the [VE] testified in response to the

ALJ’s hypothetical did not constitute substantial evidence of jobs in significant numbers

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which [Crossley] could perform.” (Doc. 19, at 20). The Commissioner asserts that the VE

provided an example job that fell within the broader range of Hand Packer and Packager jobs,

of which there were 28,000 jobs nationally, which is a significant number. (Doc. 23, at 47-

48). Further, the Commissioner argues that the ALJ is only required to identify one job within

a claimant’s capacity that exists in significant numbers in the national economy and that even

if the ampoule sealer job did not exist in significant numbers, Crossley could still perform the

representative jobs of sorter and production laborer, to which Crossley raised no objections.

(Doc. 23, at 48).

Jobs listed by the VE are only representative examples—not an exhaustive list—of jobs

that a claimant was capable of performing. Rutherford, 399 F.3d at 557. “Work exists in the

national economy when there is a significant number of jobs (in one or more occupations)

having requirements which you are able to meet with your physical or mental abilities and

vocational qualifications.” 20 C.F.R. § 416.966(b). Here, during the administrative hearing,

the ALJ presented the VE with multiple hypothetical questions that included Crossley’s

credibly-established limitations. (Doc. 15-3, at 39-41). The VE responded, providing three

examples of representative jobs that are available in significant numbers in the national

economy that Crossley would be able to perform with the provided limitations. (Doc. 15-3,

at 40-42). The VE provided a representative job of “ampoule sealer” that falls within the

broader job classification of “hand packer and packagers,” of which there are 28,000 jobs

nationally. (Doc. 15-3, at 49). This number is significant and indicates that there exists in the

national economy jobs that Crossley can perform with the ALJ’s RFC determination. See

Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir. 1987) (substantial evidence supported ALJ’s RFC

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where VE indicated there were about 200 jobs available in the national economy that the

plaintiff could perform).

Accordingly, the Court finds that the ALJ committed no error as to this issue.

V. CONCLUSION

Based on the foregoing, the Court AFFIRMS the Commissioner’s decision to deny

Crossley disability benefits and directs that FINAL JUDGMENT BE ENTERED in favor of

the Commissioner and against Crossley. The Clerk of Court is directed to CLOSE this case.

An appropriate Order follows.

Dated: December 31, 2021 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

Chief United States Magistrate Judge

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