Broaddus v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

COLLEEN MARIE BROADDUS,

Plaintiff, CIVIL ACTION NO. 3:20-cv-01418

v. (SAPORITO, M.J.)

KILOLO KIJAKAZI,1 Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM

In this matter, the plaintiff, Colleen Marie Broaddus, 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 September 15, 2017, Broaddus protectively filed a claim for

disability insurance benefits, asserting a disability onset date of April 15,

2016. The claim was initially denied by state agency reviewers on May

10, 2018. The plaintiff then requested an administrative hearing.

A hearing was subsequently held on June 6, 2019, before an

administrative law judge, Susan L. Torres (the “ALJ”). In addition to the

plaintiff herself,2 the ALJ received testimony from an impartial

vocational expert, Brian Bierley. The plaintiff was represented by

counsel at the hearing.

On July 17, 2019, the ALJ denied Broaddus’s application for

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

sequential evaluation process in determining that Broaddus was not

disabled under the Social Security Act. See generally Myers v. Berryhill,

2 The plaintiff’s brief includes a representation by counsel that

Broaddus “was unable to appear before the [ALJ] assigned to this

matter.” (Doc. 21, at 8.) Counsel is clearly mistaken. The hearing

transcript expressly states that Broaddus herself “appeared in person”

before the ALJ at that hearing. (Tr. 53.) She provided extensive

testimony, under oath. (Tr. 55–77.) Moreover, she was accompanied by

counsel of record, who also represented her in the underlying

administrative proceedings. (Tr. 53.)

373 F. Supp. 3d 528, 534 (M.D. Pa. 2019) (describing the five-step

sequential evaluation process). At step one, the ALJ found that Broaddus

had not engaged in substantial gainful activity since April 15, 2016, her

alleged disability onset date. At step two, the ALJ found that Broaddus

had the severe impairments of: degenerative disc disease; right lower

extremity radiculopathy; sinusitis / mild intermittent asthma; and

obesity. At step three, the ALJ found that Broaddus 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.

Between steps three and four of the sequential evaluation process,

the ALJ assessed Broaddus’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 Broaddus had the RFC to perform

“sedentary work” as defined in 20 C.F.R. § 404.1567(a),3 with the

following limitations:

[T]he claimant is limited to occasional climbing of

3 The Social Security regulations define “sedentary work” as a job

that “involves lifting no more than 10 pounds at a time and occasionally

lifting or carrying articles like docket files, ledgers, and small tools.” 20

C.F.R. § 404.1567(a).

ramps and stairs and never climbing ladders, ropes, or

scaffolds. The claimant may occasionally balance,

stoop, kneel, crouch, crawl, and push or pull with the

right lower extremity. The claimant requires the use of

a cane in the left non-dominant hand to stand or walk.

Within the workplace, the claimant must avoid

concentrated exposure to extreme cold, wetness,

humidity, fumes, odors, dust, gases, poor ventilation,

and hazards such as unprotected heights and moving

machinery.

(Tr. 15.)

In making these factual findings regarding Broaddus’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 (revised Oct. 25, 2017). The ALJ also

considered and articulated how persuasive she 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

expert, the ALJ concluded that Broaddus was unable to perform her past

relevant work as actually and generally performed.

At step five, the ALJ concluded that Broaddus was capable of

performing other work that exists in significant numbers in the national

economy. Based on her age, education, work experience, and RFC, and

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

Broaddus was capable of performing the requirements of representative

occupations such as final assembler, DOT # 713.687-018, inspector, DOT

# 669.687-014, or table worker, DOT # 739.687-182. Based on this

finding, the ALJ concluded that Broaddus was not disabled for Social

Security purposes.

The plaintiff sought further administrative review of her claims by

the Appeals Council, but her request was denied on July 22, 2020,

making the ALJ’s July 2019 decision the final decision of the

Commissioner subject to judicial review by this court.

Broaddus timely filed her complaint in this court on August 11,

2020. The Commissioner has filed an answer to the complaint, together

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 Broaddus is disabled, but whether the Commissioner’s finding

that she is not disabled is supported by substantial evidence and was

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

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 and supplemental security income administrative

decisions).

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

by substantial evidence because: (1) the ALJ found certain of her

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

evaluation process, despite compelling evidence to the contrary; (2) the

ALJ failed to properly evaluate prior administrative findings, including

the medical opinions of a non-examining state agency medical consultant;

(3) the ALJ failed to properly evaluate the medical opinions of her

treating physician and physician assistant; and (4) the ALJ failed to

properly evaluate the medical opinions of an examining neurologist.4

4 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 opinions of her

treating physician assistant, her treating physician, and an examining

neurologist. Although not clearly articulated by plaintiff’s counsel, a close

(continued on next page)

A. Step Two Determination

The plaintiff appears to contend that the ALJ erred in finding that

various of Broaddus’s medical conditions were not severe impairments.

At step two, the ALJ found that Broaddus had several severe

impairments including: degenerative disc disease; right lower extremity

radiculopathy; sinusitis / mild intermittent asthma; and obesity. 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

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

grievances rest on the specific claims of error we have articulated above.

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 Broaddus’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 any other impairments at step two

was harmless and provides “no valid basis for remand.” See Orr, 805 Fed.

App’x at 88.

B. 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 her 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 September 2017. Thus, a relatively new regulatory framework

governing the evaluation of medical opinion evidence applies to this

case.5

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

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

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

entire argument on this point—that the opinions of her treating

physician and treating physician assistant were 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., Gonzalez v. Kijakazi, Case No. 3:21-cv-00012 (M.D.

Pa. filed Aug. 9, 2021) (treating physician), ECF No. 15; 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.

Indeed, even under the old regulations, a physician assistant’s opinion

would never be entitled to controlling weight, as a physician assistant

was not considered an “acceptable medical source.” See 20 C.F.R.

§ 404.1527(c)(2) (explaining requirements for a treating source’s medical

opinion to be assigned “controlling weight”); id. § 404.1527(a)(1) (limiting

“medical opinions” to “statements from acceptable medical sources”); id.

§ 404.1502(a) (defining “acceptable medical source” to include licensed

physician assistants only with respect to claims filed under the new

regulations). In any event, we encourage counsel to revisit and revise his

legal boilerplate on this issue before filing any future briefs.

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

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. § 404.1520(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. § 404.1520. 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).6 An ALJ is specifically required to address these two

factors in his or her decision. See 20 C.F.R. § 404.1520(c)(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

6 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).

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,

finding them to be “persuasive.” These prior administrative findings

included the opinions of a state agency medical consultant, Wadicar

Nugent, M.D., who had found the claimant capable of performing

sedentary work with some postural and environmental limitations.

Based on his review of Broaddus’s medical records, Dr. Nugent found that

Broaddus was capable of lifting or carrying up to 20 pounds occasionally

and up to 10 pounds frequently. Dr. Nugent found that Broaddus was

capable of standing or walking up to two hours per workday and sitting

up to six hours per workday. He found that Broaddus was capable of

occasional balancing, stooping, kneeling, crouching, crawling, or climbing

of ramps or stairs, but no climbing of ladders, ropes, or scaffolds. Dr.

Nugent found that Broaddus was required to avoid even moderate

exposure to hazards such as moving machinery or unprotected heights.

In evaluating the opinions of Dr. Nugent, the ALJ found that:

The undersigned finds this opinion to be persuasive as

it is supported by the doctor’s review of the medical

evidence available to him at the time of the rendering

of his opinion. It is also consistent with the remainder

of the medical evidence, which indicates that the

claimant exhibited 5/5 strength in the lower left

extremity and 4/5 on the right. She demonstrated

normal muscle tone and bulk bilaterally. When

examined, her coordination and gain were normal[,]

and she reported that she was doing well for the most

part. However, the undersigned has also determined

that the claimant should be limited to the use of a cane

in the left non-dominant hand to stand or walk due to

her issues with stability, and because of her mild

intermittent asthma, the claimant must avoid

concentrated exposure to extreme cold, wetness,

humidity, fumes, odors, dust, gases, [or] poor

ventilation.

(Tr. 20 (citations omitted).)

The plaintiff appears to object to this evaluation of the state agency

medical and psychological consultants’ findings and opinions based on

the fact that the consultant did not actually examine Broaddus 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).

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

administrative findings concerning the plaintiff’s limitations, including

the medical opinions of the state agency medical consultant, Dr. Nugent,

is supported by substantial evidence and was reached based upon a

correct application of the relevant law.

2. Opinions of Examining Physical Therapist

On June 13, 2018, a physical therapist, Ellen Disantis, PT, DPT,

NCS, conducted a physical work performance evaluation of Broaddus.7

Over the course of four hours, Broaddus performed a series of 18 tasks,

the results of which formed the basis of Disantis’s opinion regarding

Broaddus’s functional capacity. Disantis observed that, on half of the

tasks, Broaddus “self-limited” her participation, exhibiting “sub-

7 We note that, although characterized by the ALJ as “the

claimant’s own medical provider,” suggesting a treating relationship, the

physical therapist’s examination notes indicate that this was a one-time

evaluation on referral from Broaddus’s treating neurologist. (Tr. 606–07,

617.) Two years prior to this evaluation, Broaddus had a brief treatment

relationship with the same physical therapy clinic, but not the same

physical therapist. (Tr. 605, 608–16.) Following a referral from a treating

physician assistant, Broaddus began a twelve-visit, four-week long

physical therapy program, but she quit after two visits. (Id.)

maximal” effort, and that there was “significant evidence of low effort and

inconsistent behavior.” Disantis noted that self-limiting behavior in

excess of one-third of the tasks “significantly exceeded normal limits.”

She noted that Broaddus reportedly self-limited due to pain, but a

corresponding heartrate increase was not observed. Disantis noted that

she had observed multiple other clinical inconsistencies, in which

Broaddus exhibited greater limitations during testing than when she was

unaware that she was being observed. Based on Broaddus’s performance,

Disantis opined that she was capable of maintaining a sedentary level of

work for a full 8-hour workday and 40-hours workweek. (Tr. 618–28; see

also Tr. 597–603 (abridged copy of evaluation report).)

Upon review, the ALJ found that this opinion was “persuasive”

because

it is supported by the therapist’s examination, testing,

and observation of the claimant. It is also consistent

with the remainder of the medical evidence, which

indicates that the claimant was not taking any

medications for her impairments. When examined, she

exhibited 5/5 strength in the lower left extremity and

4/5 on the right. She demonstrated normal muscle tone

and bulk bilaterally. An MRI of the lumbar spine

indicated only mild degenerative changes without

evidence of significant neural compromise or osseous

injury. An MRI of the thoracic spine was normal. A

nerve conduction study indicated borderline right S1

radiculopathy while the remainder of the test was

within normal limits. There was no evidence of a

peripheral neuropathy or peripheral nerve injury in

the legs. She reported that she was doing well for the

most part.

(Tr. 19 (citations omitted).)

The plaintiff has not articulated any specific challenge to the ALJ’s

evaluation of this medical opinion, but she nevertheless argues that the

ALJ “improperly considered” the physical therapist’s opinion. But here,

the ALJ expressly articulated her consideration and findings on the

supportability and consistency of the physical therapist’s medical

opinions.

Accordingly, we find the ALJ’s evaluation of the medical opinions

of examining physical therapist Disantis is supported by substantial

evidence and was reached based upon a correct application of the

relevant law.

3. Treating Physician Assistant and Physician Opinions

On October 17, 2018, Broaddus’s treating physician assistant,

Hannah Miller, PA-C, completed a physical residual functional capacity

questionnaire, which was co-signed by Broaddus’s treating physician,

David Heeter, DO. PA Miller and Dr. Heeter noted that Broaddus had

been a patient of their medical practice for two years. They reported a

diagnosis of L3-L4 posterior disc bulge with a good prognosis. They

reported her symptoms as including right leg pain and weakness, back

pain, and gait changes. When asked to identify clinical findings and

objective signs, they reported that, while EMG results were normal, an

MRI showed an L3-L4 disc bulge. They noted that Broaddus was not

currently on medication, but she was required to walk with a cane. When

asked if she was a malingerer or if emotional factors contributed to the

severity of her symptoms and functional limitations, they responded

“unknown.” Prior to setting out their medical opinions with respect to

Broaddus’s functional limitations, PA Miller and Dr. Heeter

acknowledged that her impairments were not reasonably consistent with

the symptoms and functional limitations described in their evaluation,

noting that a functional capacity evaluation had been completed and

inconsistencies had been noted.8 They opined that Broaddus’s experience

of pain or other symptoms was severe enough to frequently interfere with

her attention and concentration to perform even simple tasks.9 They

8 This appears to us to be a reference to the evaluation by examining

physical therapist Disantis. This is what the ALJ concluded as well.

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

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

They opined that Broaddus was capable of sitting up to six hours per

workday, provided she was allowed a five- to ten-minute break every

hour, and she was capable of standing or walking for less than two hours

per workday, with no more than one hour of uninterrupted sitting, no

more than five minutes of standing at one time, and an at-will

sit/stand/walk option. They further opined that Broaddus was required

to take a break from work every hour. PA Miller and Dr. Heeter opined

that Broaddus was capable of lifting or carrying up to 10 pounds, but only

occasionally. They opined that she was subject to certain postural

limitations: she could frequently look down, turn her head right or left,

look up, or hold her head in a static position; she could only rarely twist

or stoop; and she could never crouch, squat, or climb ladders or stairs. PA

Miller and Dr. Heeter opined that Broaddus’s impairments or treatment

would cause her to be absent from work about one day per month, but

her impairments would not affect her ability to concentrate, follow

instructions, or use her hands. They opined that Broaddus’s impairments

would not cause her to miss work on a regular basis or to be “off task” for

more than 15% of the day. (Tr. 780–85.)

Upon review, the ALJ found that these opinions were unpersuasive.

In particular, the ALJ found that:

[a]lthough it is supported by the doctor’s and the

physician assistant’s examination of the claimant, it is

inconsistent with the remainder of the medical

evidence. They noted that the claimant’s impairments

were not reasonably consistent with the symptoms and

functional limitations described in their evaluation and

note that the functional capacity evaluation completed

by Ellen Disantis observed inconsistencies in the

claimant’s physiological performance and reported

limitations. There are other inconsistencies in the

questionnaire. At one point, they indicate the

claimant’s experience of pain or other symptoms [is]

severe enough to interfere with the claimant’s

attention and concentration. At another point, they

deny that the claimant’s impairments affect her ability

to concentrate. The medical evidence indicates that the

claimant was doing well for the most part. She was

either not taking any medications for her impairments

or she only took Tylenol. When examined, she exhibited

5/5 strength in the lower left extremity and 4/5 on the

right. She demonstrated normal muscle tone and bulk

bilaterally. An MRI of the lumbar spine indicated only

mild degenerative changes without evidence of

significant neural compromise or osseous injury. An

MRI of the thoracic spine was normal.

(Tr. 19–20 (citations omitted).)

Here, the ALJ properly considered the medical evidence of record

and the relevant factors of supportability and consistency. She expressly

articulated the basis of her evaluation and her findings with respect to

the persuasiveness of these opinions as well.

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

physician assistant PA Miller and treating physician Dr. Heeter is

supported by substantial evidence and was reached based upon a correct

application of the relevant law.

4. Independent Medical Examination Report

The plaintiff also argues that the ALJ erred in failing to assign any

weight at all to the medical opinion of an examining board-certified

neurologist, John B. Chawluk, M.D., FAAN.

On March 21, 2019, Dr. Chawluk performed an independent

medical examination (“IME”) of Broaddus, apparently in connection with

civil litigation concerning the motor vehicle accident that appears to have

originally caused the injuries that comprise her impairments. Dr.

Chawluk noted his personal review of various MRI scans of Broaddus’s

brain, thoracic spine, cervical spine, and lumbar, together with his own

findings, which were in agreement with the initial assessments of

reviewing radiologists. He noted a normal EMG study as well. He

recorded his examination findings and his ultimate diagnosis of complex

regional pain syndrome type I of the right leg, muscular deconditioning

secondary to right leg pain, and symptom magnification (low back pain

and right leg weakness), with a guarded prognosis. He recommended

evaluation and treatment by a pain management specialist. He noted

that treatment options might include “right lumbar sympathetic nerve

blocks, right facet joint blocks, oral pharmacological interventions that

have not been attempted already (for example medical cannabis), spinal

cord stimulator, [or] ketamine infusions.” Dr. Chawluk’s IME report did

not include any findings with respect to Broaddus’s functional abilities

or limitations. (Tr. 786–88.)

The plaintiff contends that the ALJ failed to properly evaluate the

medical opinions stated by Dr. Chawluk in this IME report. But the IME

report does not contain any such medical opinions. In the context of social

security disability proceedings, “[a] medical opinion is a statement from

a medical source about what you can still do despite your impairment(s)

and whether you have one or more impairment-related limitations or

restrictions in”:

(i) Your ability to perform physical demands of work

activities, such as sitting, standing, walking, lifting,

carrying, pushing, pulling, or other physical functions

(including manipulative or postural functions, such as

reaching, handling, stooping, or crouching);

(ii) Your ability to perform mental demands of work

activities, such as understanding; remembering;

maintaining concentration, persistence, or pace;

carrying out instructions; or responding appropriately

to supervision, co-workers, or work pressures in a work

setting;

(iii) Your ability to perform other demands of work,

such as seeing, hearing, or using other senses; and

(iv) Your ability to adapt to environmental conditions,

such as temperature extremes or fumes.

20 C.F.R. § 404.1513(a)(2) (defining “medical opinions”). But while Dr.

Chawluk may be said to have provided an “opinion” in the colloquial

sense, in the context of these disability benefits proceedings, his IME

report is comprised of only his “judgments about the nature and severity

of [Broaddus’s] impairments, [her] medical history, clinical findings,

diagnosis, treatment prescribed with response, or prognosis.” See id.

§ 404.1513(a)(3) (defining “other medical evidence”). As such, the ALJ

was not required to evaluate Dr. Chawluk’s IME report as a medical

opinion and articulate how persuasive she found it to be. Moreover, we

note that the ALJ expressly considered and relied upon Dr. Chawluk’s

examination findings in the course of determining Broaddus’s RFC. (See

Tr. 18.)

Accordingly, we find the ALJ did not err with respect to her

consideration of the findings of examining neurologist Dr. Chawluk.

III. CONCLUSION

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

finding that Broaddus 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 12, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge