Gonzalez v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

BELJICA Y. JIMINEZ GONZALEZ,

Plaintiff, CIVIL ACTION NO. 3:21-cv-00012

v. (SAPORITO, M.J.)

KILOLO KIJAKAZI,1 Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM

In this matter, the plaintiff, Beljica Y. Jiminez Gonzalez, seeks

judicial review of the final decision of the Commissioner of Social Security

denying her application for disability insurance benefits, pursuant to 42

U.S.C. § 405(g). The matter has been referred to the undersigned United

States magistrate judge on consent of the parties, pursuant to 28 U.S.C.

§ 636(c) and Fed. R. Civ. P. 73.

1 Kilolo Kijakazi became the Acting Commissioner of Social

Security on July 9, 2021. She has been automatically substituted in place

of the original defendant, Andrew Saul. See Fed. R. Civ. P. 25(d); see also

42 U.S.C. § 405(g) (action survives regardless of any change in the person

occupying the office of Commissioner of Social Security). The caption in

this case is amended to reflect this change.

I. BACKGROUND

On February 6, 2019, Gonzalez protectively filed a claim for

disability insurance benefits, asserting a disability onset date of January

31, 2019. The claim was initially denied by state agency reviewers on

May 28, 2019, and upon reconsideration on September 27, 2019. The

plaintiff then requested an administrative hearing.

A hearing was subsequently held on March 24, 2020, before an

administrative law judge, Lawrence J. Neary (the “ALJ”). In addition to

the plaintiff herself, the ALJ received testimony from an impartial

vocational expert, Andrew Caporale. The plaintiff was represented by

counsel at the hearing.

On April 7, 2020, the ALJ denied Gonzalez’s application for benefits

in a written decision. The ALJ followed the familiar five-step sequential

evaluation process in determining that Gonzalez was not disabled under

the Social Security Act. See generally Myers v. Berryhill, 373 F. Supp. 3d

528, 534 (M.D. Pa. 2019) (describing the five-step sequential evaluation

process). At step one, the ALJ found that Gonzalez had not engaged in

substantial gainful activity since her alleged disability onset date. At step

two, the ALJ found that Gonzalez had the severe impairments of:

myofascial cervical pain; chronic bilateral low back pain without sciatica;

diabetes; obesity; major depressive disorder; and unspecified anxiety

disorder.

At step three, the ALJ found that Gonzalez did not have an

impairment or combination of impairments that meets or medically

equals the severity of an impairment listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1. The ALJ considered Gonzalez’s limitations in

four broad functional areas as a result of her mental disorders, finding

moderate limitations in three functional areas—(1) understanding,

remembering, or applying information, (2) interacting with others, and

(3) concentrating, persisting, or maintaining pace—and mild limitations

in the fourth area—adapting or managing oneself. See generally 20

C.F.R. § 404.1520a(c) (explaining functional limitation rating process for

mental impairments); 20 C.F.R. pt. 404, subpt. P, app.1, § 12.00(E)

(explaining the four areas of mental functioning); id. § 12.00(F)

(explaining process for using paragraph B criteria to evaluate mental

impairments).

Between steps three and four of the sequential evaluation process,

the ALJ assessed Gonzalez’s residual functional capacity (“RFC”). See

generally id. at 534 n.4 (defining RFC). After evaluating the relevant

evidence of record, the ALJ found that Gonzalez had the RFC to perform

“light work” as defined in 20 C.F.R. § 404.1567(b),2 with the following

limitations:

[S]he can occasionally kneel, crouch, crawl, and climb

ramps and stairs; and can never climb ladders, ropes

or scaffolds. She has a mental capacity limited to

simple, routine tasks with only occasional changes in

the work setting. She can occasionally interact with

supervisors, coworkers, and the public.

(Tr. 23.)

In making these factual findings regarding Gonzalez’s RFC, the

ALJ considered her symptoms and the extent to which they could

reasonably be accepted as consistent with the objective medical evidence

and other evidence of record. See generally 20 C.F.R. § 404.1529; Soc. Sec.

Ruling 16-3p, 2017 WL 5180304. The ALJ also considered and articulated

how persuasive he found the medical opinions and prior administrative

medical findings of record. See generally 20 C.F.R. § 404.1520c.

At step four, based on this RFC and on testimony by the vocational

2 The Social Security regulations define “light work” as a job that

“involves lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).

expert, the ALJ concluded that Gonzalez was capable of performing her

past relevant work as a hand packager, DOT # 920.587-018, as actually

performed.3 Based on this finding, the ALJ concluded that Gonzalez was

not disabled for Social Security purposes.4

The plaintiff sought further administrative review of her claims by

the Appeals Council, but her request was denied on December 1, 2020,

making the ALJ’s April 2020 decision the final decision of the

Commissioner subject to judicial review by this court.

Gonzalez timely filed her complaint in this court on January 5,

2021. The Commissioner has filed an answer to the complaint, together

3 As generally performed in the national economy, this occupation

is typically performed at a medium exertional level, but the ALJ found

that this work as actually performed by Gonzalez in the past was light

work. See DICOT 920.587-0180, 1991 WL 687916 (“packager, hand”).

4 Although the ALJ found Gonzalez not disabled at step four, he

also recorded an alternative finding that Gonzalez was capable of

performing other work that exists in significant numbers in the national

economy, which would in turn dictate a not-disabled finding at step five.

Based on Gonzalez’s age, education, work experience, and RFC, and

based on testimony by the vocational expert, the ALJ concluded that

Gonzalez was capable of performing the requirements of representative

occupations such as bakery worker conveyor liner, DOT # 524.687-022,

inspector and hand packager, DOT # 559.687-074, and cleaner,

housekeeping, DOT # 323.687-014. See DICOT, 524.687-022 1991 WL

674401 (“bakery worker, conveyor line”); DICOT, 559.687-074 1991 WL

683797 (“inspector and hand packager”); DICOT, 323.687-014 1991 WL

672783 (“cleaner, housekeeping”).

with a certified copy of the administrative record. Both parties have filed

their briefs, and this matter is now ripe for decision.

II. DISCUSSION

Under the Social Security Act, the question before this court is not

whether the claimant is disabled, but whether the Commissioner’s

finding that he or she is not disabled is supported by substantial evidence

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

generally 42 U.S.C. § 405(g)(sentence five); Myers, 373 F. Supp. 3d at 533

(describing standard of judicial review for social security disability

insurance benefits administrative decisions).

Gonzalez asserts on appeal that the ALJ’s decision is not supported

by substantial evidence because: (1) the ALJ erred in determining that

her fibromyalgia was a non-medically determinable impairment at step

two of the five-step sequential evaluation process, and in failing to

consider this impairment in later steps; (2) the ALJ erred in finding

certain of her impairments “not severe” at step two of the five-step

sequential evaluation process, despite compelling evidence to the

contrary; (3) the ALJ failed to properly evaluate prior administrative

findings, including the medical opinions of non-examining state agency

medical and psychological consultants; and (4) the ALJ failed to properly

evaluate the medical opinion of her treating physician.5

A. Step Two Non-Medically Determinable Impairment

At step two, the ALJ considered whether Gonzalez had a medically

determinable impairment of fibromyalgia. The ALJ reviewed the medical

evidence of record, stating:

The record also shows that the claimant was assessed

with fibromyalgia; however, the record fails to

establish consistent findings of 11 out of 18 tender

points, treatment by a rheumatologist, or a need for

significant ongoing treatment for fibromyalgia. The

undersigned has considered [Social Security Ruling]

12-2p, and finds the requirement that other disorders

or co-occurring conditions that could cause the

claimant’s symptoms were excluded has not been met.

Therefore, the undersigned finds fibromyalgia is not a

medically determinable impairment.

(Tr. 21.) As a consequence, the ALJ did not consider any impairments as

a result of fibromyalgia in his evaluation of Gonzalez’s RFC.

5 The plaintiff’s brief articulated three conclusory, extremely

general claims of error: (1) the ALJ failed to consider the limitations in

the RFC from those of the impairments which the ALJ found to be severe;

(2) the ALJ failed to consider the limitations in the RFC from those of the

impairments which the ALJ found to be non-severe, or never mentioned;

and (3) the ALJ failed to give proper weight to the medical opinion of her

treating physician. Although not clearly articulated by plaintiff’s counsel,

a close reading of the plaintiff’s brief reveals that these very generalized

grievances rest on the specific errors we have articulated above.

A “medically determinable impairment” is one “that results from

anatomical, physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory diagnostic

techniques.” 42 U.S.C. § 423(d)(3). The plaintiff points to multiple

references in the medical records noting a diagnosis of fibromyalgia, as

well as evidence of potential symptoms of fibromyalgia, and she argues

that the ALJ erred in failing to consider her fibromyalgia under Social

Security Ruling 12-2p.6

In Ruling 12-2p, the agency described “the evidence we need to

establish [a medically determinable impairment] of [fibromyalgia]” and

how it evaluates that evidence. Soc. Sec. Ruling 12-2p, 2012 WL 3104869,

at*2. In particular, the ruling provides that an ALJ “cannot rely upon the

6 The plaintiff also references the agency’s Program Operations

Manual System (“POMS”), arguing that the ALJ should have considered

her fibromyalgia under POMS DI 24515.076 as well. But statements in

POMS lack the force of law and create no judicially enforceable rights.

See Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (“[T]he Claims Manual

is not a regulation. It has no legal force, and it does not bind the SSA.”);

Edelman v. Comm’r of Soc. Sec., 83 F.3d 68, 71 n.2 (3d Cir. 1996) (“POMS

is the authorized means for issuing official Social Security policy and

operating instructions. These regulations do not have the force of law.”)

(citation omitted); Bordes v. Comm’r of Soc. Sec., 235 Fed. App’x 853, 859

(3d Cir. 2007) (“POMS and HALLEX provisions . . . lack the force of law

and create no judicially-enforceable rights.”).

physician’s diagnosis alone.” Id. The medical record must include not only

a diagnosis of fibromyalgia, but also evidence meeting specific criteria set

forth in Ruling 12-2p: (1) “[a] history of widespread pain—that is, pain in

all quadrants of the body (the right and left sides of the body, both above

and below the waist) and axial skeletal pain (the cervical spine, anterior

chest, thoracic spine, or low back)—that has persisted . . . for at least 3

months”; (2) either (A) at least 11 of 18 positive tender points on physical

examination, or (B) repeated manifestations of six or more fibromyalgia

symptoms, signs, or co-occurring conditions; and (3) evidence that other

disorders that could cause the symptoms or signs were excluded. Id. at

*2–*3. Finally, the diagnosis of fibromyalgia must also not be

inconsistent with other evidence in the record. Id. at *2.

The plaintiff’s claim of error is entirely without merit. As evidenced

by the passage quoted above, the ALJ explicitly considered whether she

had a medically determinable impairment of fibromyalgia, and he

explicitly considered the provisions of Social Security Ruling 12-2p. The

third criteria specified above was dispositive, with the ALJ finding that

the medical evidence of record failed to satisfy the Ruling 12-2p

requirement that other disorders that could cause the claimant’s

symptoms were excluded. (See Tr. 21.)

Thus, in the absence of sufficient evidence to satisfy the Ruling 12-

2p criteria, we find there is substantial evidence to support the ALJ’s

finding that Gonzalez’s fibromyalgia was not a medically determinable

impairment. Moreover, because the ALJ is only required to consider

medically determinable impairments, see 20 C.F.R. §§ 404.1521,

404.1545(a)(2), the ALJ’s failure to consider the plaintiff’s alleged

fibromyalgia in determining her RFC was not in error. See Switzer v.

Comm’r of Soc. Sec., No. 1:18-cv-16554-NLH, 2019 WL 5485526, at *6

(D.N.J. Oct. 24, 2019) (finding that, in determining a claimant’s RFC,

“the ALJ does not need to consider any alleged conditions that are not

medically determinable”).

B. Step Two Non-Severe Impairments

At step two, the ALJ also noted that Gonzalez had a history of

angina, hyperlipidemia, sleep disturbance, gastro esophageal reflux

disease (GERD), carpal tunnel syndrome, hypertension, and thyroid

nodules, but there was little evidence that these impairments more than

minimally limited her ability to perform sustained work tasks. Thus, the

ALJ found these impairments to be non-severe. (Tr. 21.) The plaintiff

contends that this determination was in error.

But notwithstanding the ALJ’s finding with respect to the severity

of the foregoing conditions, the ALJ found that Gonzalez had several

severe impairments: myofascial cervical pain; chronic bilateral low back

pain without sciatica; diabetes; obesity; major depressive disorder; and

unspecified anxiety disorder. (Tr. 20.) The ALJ then proceeded on to step

three of the five-step sequential evaluation process.

At step two, a claimant bears the burden of proving that he suffers

from “a medically severe impairment or combination of impairments.”

Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). But the step-two inquiry

is merely “a de minimis screening device to dispose of groundless claims.”

Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). “[T]he

analysis at step two is wholly independent of the analysis at later

steps. . . . [N]ot finding certain impairments severe at step two does not

affect the ultimate disability determination.” Alvarado v. Colvin, 147 F.

Supp. 3d 297, 311 (E.D. Pa. 2015); see also Orr v. Comm’r Soc. Sec., 805

Fed. App’x 85, 88 (3d Cir. 2020) (“[B]ecause the ALJ progressed to a later

step, any error at Step Two would not alter that remainder of the five-

step process, much less the overall outcome.”); Ray v. Berryhill, 915 F.3d

486, 492 (7th Cir. 2019) (per curiam) (“Step two is a threshold inquiry; so

long as one of a claimant’s limitations is found to be severe, error at that

step is harmless.”); Salles v. Comm’r of Soc. Sec., 229 Fed. App’x 140, 145

n.2 (3d Cir. 2007) (“Because the ALJ found in [the claimant’s] favor at

Step Two, even if he had erroneously concluded that some other

impairments were nonsevere, any error was harmless.”).

Here, the ALJ found in Gonzalez’s favor at step two, finding that

she had several other severe impairments, and then proceeded on to step

three of the five-step sequential evaluation process. Thus, any error with

respect to evaluation of the severity of her conditions of angina,

hyperlipidemia, sleep disturbance, GERD, carpal tunnel syndrome,

hypertension, and thyroid nodules at step two was harmless and provides

“no valid basis for remand.” See Orr, 805 Fed. App’x at 88.

C. Medical Opinions and Prior Administrative Findings

The plaintiff contends that the ALJ’s decision is not supported by

substantial evidence because the ALJ erred in his evaluation of

conflicting medical opinions and prior administrative findings presented

in the administrative proceedings below. As a preface, we note the well-

established principle that, in evaluating the medical opinion evidence of

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

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

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

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

substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607,

620 (1966). Moreover, “[i]n the process of reviewing the record for

substantial evidence, we may not ‘weigh the evidence or substitute [our

own] conclusions for those of the fact-finder.’” Rutherford v. Barnhart,

399 F.3d 546, 552 (3d Cir. 2005) (quoting Williams v. Sullivan, 970 F.2d

1178, 1182 (3d Cir. 1992)). Ultimately, to reverse the ALJ’s findings and

decision, “we must find that the evidence not only supports [a contrary]

conclusion, but compels it.” Immigration & Naturalization Serv. v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992); see also Smith v. Chater, 99 F.3d

780, 782 & N.3 (6th Cir. 1996) (citing Elias-Zacarias in the context of

social security disability benefits); Hert v. Barnhart, 234 F. Supp. 2d 832,

837 (N.D. Ill. 2002) (“The court may reverse the Commissioner’s decision

only if the evidence ‘compels’ reversal, not merely because the evidence

supports a contrary decision.”) (citing Elias-Zacarias).

Here, the plaintiff originally filed her administrative claim for

benefits in February 2019. Thus, a relatively new regulatory framework

governing the evaluation of medical opinion evidence applies to this

case.7

“The new regulations have been described as a ‘paradigm shift’ in

the way medical opinions are evaluated.” Knittle v. Kijakazi, Civil No.

1:20-CV-00945, 2021 WL 5918706, at *4 (M.D. Pa. Dec. 15, 2021). “Prior

to March 2017, ALJs were required to follow regulations which defined

medical opinions narrowly and created a hierarchy of medical source

opinions with treating sources at the apex of this hierarchy.” Densberger

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

29, 2021). Under this prior regulatory scheme, the Social Security

Administration “followed the ‘treating physician rule,’ which required the

7 We note that counsel for the plaintiff has mistakenly premised his

entire argument on this point—that the treating physician’s opinion was

entitled to controlling weight, or at least great weight—on the old

regulations, which no longer apply. This is not the only case in which this

same attorney has made this same, fundamental error. See, e.g., Pl.’s Br.,

Rivera v. Kijakazi, Case No. 3:21-cv-01574 (M.D. Pa. filed Feb. 14, 2022)

(examining physician), ECF No. 12; Pl.’s Br., Broaddus v. Kijakazi, Case

No. 3:20-cv-01418 (M.D. Pa. filed July 13, 2021) (treating physician), ECF

No. 21; Pl.’s Br., Torres v. Kijakazi, Case No. 3:20-cv-02049 (M.D. Pa.

filed July 1, 2021) (treating physician), ECF No. 15; Pl.’s Br., Martinez v.

Kijakazi, Case No. 3:20-cv-01550 (M.D. Pa. filed June 7, 2021) (treating

physician), ECF No. 19. We encourage counsel to revisit and revise his

legal boilerplate on this issue before filing any future briefs.

agency to give controlling weight to a treating source’s opinion, so long as

it was ‘well-supported by medically acceptable clinical and laboratory

diagnostic techniques’ and not ‘inconsistent with the other substantial

evidence’ in the record.” Michelle K. v. Comm’r of Soc. Sec., 527 F. Supp.

3d 476, 481 (W.D. Pa. 2021). However, the regulations governing the

evaluation of medical evidence were amended and the treating physician

rule was eliminated effective March 27, 2017. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5,844 (Jan.

18, 2017); see also Densberger, 202 WL 1172982, at *7–*8; Michelle K.,

527 F. Supp. 3d at 481. “The range of opinions that ALJs were enjoined

to consider were broadened substantially and the approach to evaluating

opinions was changed from a hierarchical form of review to a more

holistic analysis.” Densberger, 2021 WL 1172982, at *7.

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

specific evidentiary weight, including controlling weight, to any medical

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

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

than assigning weight to medical opinions, [an ALJ] will articulate ‘how

persuasive’ he or she finds the medical opinions.” Knittle, 2021 WL

5918706, at *4; see also 20 C.F.R. § 404.1520c(b). If a medical source

provides one or more medical opinions, the agency will consider those

medical opinions from that medical source together using the following

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

claimant, including the length of the treatment relationship, the

frequency of examinations, purpose and extent of the treatment

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

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

or prior administrative medical finding.’” Michelle K., 527 F. Supp. 3d at

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

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

determining the persuasiveness of medical opinions are consistency and

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

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

20 C.F.R. § 404.1520c(b)(2); Michelle K., 527 F. Supp. 3d at 481; compare

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

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

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

these two factors in his or her decision. See 20 C.F.R. § 404.1520c(b)(2);

see also Densberger, 2021 1172982, at *8; Michelle K., 527 F. Supp. 3d at

482. “The ALJ may—but is not required to—explain how he considered

the remaining factors.” Michelle K., 527 F. Supp. 3d at 482; see also 20

C.F.R. § 404.1520c(b)(2); Densberger, 2021 WL 1172982, at *8. “However,

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

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

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

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

§ 404.1520c(b)(3); Michelle K., 527 F. Supp. 3d at 482.

1. Prior Administrative Findings

The ALJ considered the prior administrative findings in this case

8 With respect to supportability, the new regulations provide that

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

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

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

persuasive the medical opinions or prior administrative medical

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

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

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

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

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

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

finding them to be “partially persuasive.” (Tr. 26, 27.)

The prior administrative findings included the opinions of state

agency medical consultant, David Ferner, D.O., who had found the

claimant capable of performing a full range of light work, and Michael J.

Brown, D.O., who had found the claimant capable of performing light

work with some postural limitations. Based on their review of Gonzalez’s

medical records, Dr. Ferner and Dr. Brown each found that Gonzalez was

capable of lifting or carrying up to 20 pounds occasionally and up to 10

pounds frequently. Dr. Brown additionally found that Gonzalez was

capable of frequent balancing or stooping and occasional kneeling,

crouching, crawling, or climbing of ramps or stairs, but no climbing of

ladders, ropes, or scaffolds. In evaluating the opinions of Dr. Ferner and

Dr. Brown together, the ALJ found that:

Insofar as these statements indicate the claimant can

perform light work, occasionally kneel, crouch, crawl,

climb ramps and stairs, and never climb ladders, ropes,

or scaffolds; they are generally supported by the

longitudinal treatment notes, which generally show

the claimant is in no acute distress with normal gait,

good range of motion, intact cranial nerves, full

strength, full grip strength, intact sensation, normal

and equal deep tendon reflexes, capillary refill in less

than two seconds, and no edema. The remainder of

these statements are unsupported by the claimant’s

treatment with physical therapy, a TENS device, and

medication. Thus, the undersigned finds Dr. Ferner’s

and Dr. Brown’s statements are partially persuasive.

(Tr. 26 (citations omitted).)

The prior administrative findings also included the opinions of state

agency psychological consultants, Karen Plowman, Psy.D., and Thomas

Fink, Ph.D., both of whom had found that Gonzalez had only mild

limitations in each of the four broad functional areas considered at step

two.9 In evaluating the opinions of Dr. Plowman and Dr. Fink together,

the ALJ found that:

Insofar as they state the claimant has mild limitations

adapting or managing herself, this statement is

generally supported by the longitudinal treatment

notes, which generally show the claimant is fully

oriented and cooperative with congruent affect, normal

appearance, neat dress and grooming, normal eye

contact, appropriate manner, normal speech, normal

thought process, logical thought content, normal

cognition, normal memory, normal behavior, intact

decision making ability, good fund of knowledge, good

insight, and normal judgment. The remainder of these

statements understate the claimant’s limitations and

are inconsistent with the claimant’s treatment with

9 Under the applicable regulations, when mental limitations are

rated as “mild,” they are generally found to be non-severe, and thus need

not be considered at later steps in the five-step evaluation process. See

20 C.F.R. § 1520a(d)(1). Here, neither of the state agency psychological

consultants recorded findings with respect to Gonzalez’s mental residual

functional capacity or any specific limitations, apparently based on their

across-the-board findings of “mild” mental functional limitations.

counseling and medication. Accordingly, the

undersigned finds Dr. Plowman’s and Dr. Fink’s

statements are partially persuasive.

(Tr. 27 (citations omitted).)

The plaintiff primarily objects to this evaluation of the state agency

medical and psychological consultants’ findings and opinions based on

the fact that none of the four consultants actually examined Gonzalez in

person. But the medical opinion of a non-examining medical source, such

as a state agency medical or psychological consultant, may serve as

substantial evidence when the opinion is consistent with other medical

evidence in the record. See Nichols v. Comm’r of Soc. Sec., 404 Fed. App’x

701, 704–05 (3d Cir. 2010); Thomas v. Barnhart, 278 F.3d 947, 957 (9th

Cir. 2002); My-Lein L. v. Comm’r of Soc. Sec., 551 F. Supp. 3d 100, 107

(W.D.N.Y. 2021); Ortiz v. Comm’r of Soc. Sec., 309 F. Supp. 3d 189, 205

(S.D.N.Y. 2018).

The plaintiff also suggests that the ALJ’s evaluation of the opinions

of these four non-examining sources was lacking because it failed to more

robustly cite specific medical evidence that he found supportive of the

consultants’ findings. But “[t]here is no requirement that the ALJ discuss

in its opinion every tidbit of evidence included in the record.” Hur v.

Barnhart, 94 Fed. App’x 130, 133 (3d Cir. 2004); see also Phillips v.

Barnhart, 91 Fed. App’x 775, 780 n.7 (3d Cir. 2004) (“A written

evaluation of every piece of evidence is not required, as long as the ALJ

articulates at some minimum level her analysis of a particular line of

evidence. Moreover, the ALJ’s mere failure to cite specific evidence does

not establish that the ALJ failed to consider it.”) (citation omitted);

Kupiec v. Kijakazi, No. 20-1240, 2021 WL 5015775, at *2 (W.D. Pa. Oct.

28, 2021) (“An ALJ is not required to discuss or cite every piece of

evidence in the record.”). It is only necessary that “the ALJ’s decision,

read as a whole, illustrates that the ALJ considered the appropriate

factors” in reaching his conclusions, which it does here. Jones v.

Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).

Accordingly, we find the ALJ’s evaluation of the prior

administrative findings concerning the plaintiff’s physical and mental

limitations, including the medical opinions of the state agency medical

and psychological consultants, Dr. Ferner, Dr. Brown, Dr. Plowman, and

Dr. Fink, is supported by substantial evidence and was reached based

upon a correct application of the relevant law.

2. Treating Physician Opinion

On January 27, 2020, Gonzalez’s treating physician, Joseph A.

Troncale, M.D., completed a physical residual functional capacity

questionnaire. Dr. Troncale noted that Gonzalez had been a long-term

patient at his medical practice. He reported a diagnosis of fibromyalgia

with a guarded prognosis. He reported her symptoms as including neck

and back pain, as well as elbow pain. When asked to identify clinical

findings and objective signs, he stated: “Patient has complaints. She is in

pain management.” He reported that she had been to a pain management

clinic, and they had suggested trigger point injections, which had not yet

been administered.10 When asked if the patient was a malingerer, Dr.

Troncale responded: “difficult to assess.” He noted that emotional and

psychological factors may have been affecting her condition. Dr. Troncale

opined that Gonzalez’s experience of pain or other symptoms was severe

enough to frequently interfere with her attention and concentration to

perform even simple tasks.11 He opined that Gonzalez was capable of

performing only low-stress jobs. He opined that Gonzalez was capable of

10 We note that the pain management clinic’s treatment records

indicate that she had repeatedly declined trigger point injections.

11 The form defined “frequently” as 34% to 66% of workday.

sitting up to four hours per workday, and standing or walking up to two

hours per workday, with no more than 30 minutes of uninterrupted

sitting and no more than 10 minutes of standing at one time. He further

opined that Gonzalez was required to take a 10-minute break from work

every hour. Dr. Troncale opined that Gonzalez was capable of lifting or

carrying up to 10 pounds rarely and less than 10 pounds only

occasionally. He opined that she was subject to certain postural

limitations: no more than occasionally turning her head left or right,

looking up, holding her head static, crouching, squatting, or climbing

stairs, and only rarely looking down, twisting, stooping, or climbing

ladders. He found that Gonzalez had no significant limitations with

reaching, handling, or fingering, but then opined that she could perform

handling no more than 10% of the time, fingering no more than 20% of

the time, and reaching no more than 20% of the time. Dr. Troncale opined

that Gonzalez’s impairments or treatment would cause her to be absent

from work about four days per month, and that her impairments would

cause her to be “off task” more than 15% of a workday. (Tr. 907–12).

Upon review, the ALJ found that this opinion was unpersuasive. In

particular, the ALJ found Dr. Troncale’s functional capacity assessment

was:

unsupported by his treatment notes, which largely

show the claimant has normal range of motion and

capillary refill in less than two seconds. This statement

is also unsupported because it is a checklist with

minimal explanation. Additionally, this statement is

inconsistent with itself as Dr. Troncale noted it is

“difficult to assess” if the claimant is a malingerer, and

Dr. Troncale indicated the claimant had both

significant limitations handling and fingering and

none of her “impairments affect her ability to use her

hands.” Further, this statement is inconsistent with

the claimant’s activities of daily living, which show[]

the claimant . . . can prepare meals, do dishes, do light

dusting, take out small bags of trash, ride in a car, and

shop in stores. This statement is also inconsistent with

the progress notes, which mostly show the claimant is

in no acute distress with normal gait, good range of

motion, intact cranial nerves, full strength, full grip

strength, intact sensation, normal and equal deep

tendon reflexes, capillary refill in less than two

seconds, and no edema. Therefore, the undersigned

finds Dr. Troncale’s statement is unpersuasive.

(Tr. 26–27 (citations and brackets omitted).)

Here, the ALJ properly considered the medical evidence of record

and the relevant factors of supportability and consistency, expressly

articulating his findings on these required factors. He also expressly

addressed an additional factor based on the nature of the treating

physician’s assessment as a form report. See, e.g., Mason v. Shalala, 994

F.2d 1058, 1065 (3d Cir. 1993) (“Form reports in which a physician’s

obligation is only to check a box or fill in a blank are weak evidence at

best.”).

Accordingly, we find the ALJ’s evaluation of the opinion of treating

physician Dr. Troncale is supported by substantial evidence and was

reached based upon a correct application of the relevant law.

III. CONCLUSION

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

finding that Gonzalez was not disabled is supported by substantial

evidence and was reached based upon a correct application of the

relevant law. Accordingly, the Commissioner’s decision denying

disability benefits is AFFIRMED.

An appropriate Order follows.

Dated: April 6, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge