Lenhardt v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

BRIDGETTE LENHARDT,

Plaintiff, CIVIL ACTION NO. 3:20-cv-01656

Vv. (SAPORITO, M.J.)

KILOLO KIJAKAZI,! Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM

In this matter, the plaintiff, Bridgette Lenhardt, seeks judicial

review of the final decision of the Commissioner of Social Security

denying her claim 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 November 20, 2016, Lenhardt filed a claim for disability

insurance benefits, originally asserting a disability onset date of May 31,

2008. She subsequently amended her alleged onset date to January 1,

2010. Her claim was initially denied by state agency reviewers on June

1, 2017. The plaintiff then requested an administrative hearing.

A video hearing was subsequently held on May 9, 2019, before an

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

plaintiff herself, the ALJ received te stimony from an impartial vocational

expert, Tricia Muth. The plaintiff was represented by counsel at the

hearing.

On May 31, 2019, the ALJ denied Lenhardt’s application for

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

sequential evaluation process in determining that Lenhardt 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 Lenhardt

had not engaged in substantial gainful activity during the period from

her alleged disability onset date, January 1, 2010, through her date last

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insured, March 31, 2014.? At step two, the ALJ found that Lenhardt had

the severe impairments of: supraventricular tachycardia, mitral valve

prolapse, hypertension, sarcoidosis, psoriatic arthritis, obesity, and

obstructive sleep apnea. At step three, the ALJ found that Lenhardt 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 Lenhardt’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, at the time of her date last

insured, Lenhardt had the RFC to perform “light work” as defined in 20

C.F.R. § 404.1567(b),3 with the following limitations:

[S]he could occasionally balance, stoop, and climb

ramps or stairs; and was precluded from kneeling,

crouching, crawling, and climbing [ladders, ropes, or

scaffolds],4 from concentrated exposure to temperature

2 See generally 42 U.S.C. § 423(c)(1); 20 C.F.R. § 404.130.

3 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).

ALJ’s decision articulates both a limitation to only occasional

climbing of ramps or stairs and a limitation totally precluding her from

(continued on next page)

5 Bre

extremes, excessive wetness, excessive humidity, and

excessive vibration, and from... all work related

exposure to unprotected heights and hazardous

machinery.

(Tr. 14.)

In making these factual findings regarding Lenhardt’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 he weighed the various medical opinions

in the record. See generally 20 C.F.R. § 404.1527, Soc. Sec. Ruling 96-2p,

1996 WL 374188.

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

expert, the ALJ concluded that, during the period between her alleged

disability onset date and her date last insured, Lenhardt was unable to

perform her past relevant work as actually and generally performed.

climbing ramps or stairs. Based on the evidence of record, including the

hypothetical questions posed to the vocational expert at the

administrative hearing, the latter is clearly a scrivener’s error. The

hypotheticals posed to the vocational expert included occasional climbing

of ramps or stairs and a complete preclusion of climbing ladders, ropes,

or scaffolds.

mies

At step five, the ALJ concluded that, during the period between her

alleged disability onset date and her date last insured, Lenhardt was

capable of performing other jobs that exist 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 Lenhardt was capable of performing the requirements of

representative occupations such as small parts assembler, DOT

# 706.684-022, inspector / hand packager, DOT # 559.687-074, and mail

clerk, DOT # 209.687-026. Based on this finding, the ALJ concluded that

Lenhardt 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 16, 2020,

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

Commissioner subject to judicial review by this court.

The plaintiff timely filed her complaint in this court on September

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.

Bex

II. DISCUSSION

Under the Social Security Act, the question before this court 1s 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).

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

by substantial evidence because the ALJ failed to properly evaluate the

medical opinions of her treating physician, Kim Norville, M.D., and a

state agency medical consultant, James Butcofski, M.D.5

A. Treating Physician Opinions

The plaintiff contends that the ALJ erred in his evaluation of the

5 We note that the plaintiffs brief has identified additional issues

on appeal, but these issues are all contingent upon a ruling in favor of

the plaintiff with respect to the ALJ’s evaluation of medical opinions. The

plaintiff contends that the ALJ erred in excluding certain non-exertional

limitations based on Dr. Norville’s opinion, and that the ALJ erred in

finding at step five that Lenhardt could do work that exists in significant

numbers in the national economy based on vocational expert testimony

in response to a hypothetical question that did not incorporate these non-

exertional limitations.

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opinions of her treating physician, Dr. Norville. The plaintiff contends

that the ALJ erred in assigning “little weight” to Dr. Norville’s opinions

with respect to certain functional limitations, any one of which would

have been dispositive of Lenhardt’s ability to perform any work if

accepted and incorporated into her REC.

To be a “medical opinion” entitled to “controlling weight” an opinion

must come from a “treating source,” it must be “well-supported by

medically acceptable clinical and laboratory diagnostic techniques,” and

it must be “not inconsistent with the other substantial evidence in your

case record.” 20 C.F.R. § 404.1527(a)(2), (c)(2); Soc. Sec. Ruling 96-2p,

1996 WL 374188, at *2.6 Under the Social Security regulations applicable

to this case, a “treating source” was defined as a “physician, psychologist,

or other acceptable medical source who provides you, or has provided you,

with medical treatment or evaluation and who has, or has had, an

ongoing treatment relationship with you.” 20 C.F.R. § 404.1502. As to

what constitutes an “ongoing treatment relationship,” the regulation

BW wanke Ghed-the treating physician rule applicable in this case

was subsequently eliminated by an amendment to the rules effective

March 27, 2017. See Revisions to Rules Regarding the Evaluation of

Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017).

eRe

states:

Generally, we will consider that you have an ongoing

treatment relationship with an acceptable medical

source when the medical evidence establishes that you

see, or have seen, the source with a frequency

consistent with accepted medical practice for the type

of treatment and/or evaluation required for your

medical condition(s). We may consider an acceptable

medical source who has treated or evaluated you only

a few times or only after long intervals (e.g., twice a

year) to be your treating source if the nature and

frequency of the treatment or evaluation is typical for

your condition(s).

Id.

If not well-supported by medically acceptable clinical and

diagnostic techniques or inconsistent with other substantial evidence in

the case record, a treating source medical opinion is nevertheless

generally entitled to deference. Soc. Sec. Ruling 96-2p, 1996 WL 374188,

at *4, Ordinarily, it will be afforded “great weight.” See id. at *2: Morales

v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). See generally 20 C.F.R.

§ 404.1527(c) (detailing factors considered in evaluating weight given to

a medical opinion).

Dr. Norville, one of Lenhardt’s treating physicians, completed a

medical source questionnaire on March 25, 2019—almost five years after

Lenhardt’s date last insured. In response to the questionnaire, Dr.

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Norville opined that, due to pain, fatigue, diminished concentration or

work pace, or a need to rest, Lenhardt would be “off task” more than 33%

of the time during a typical workday. She opined that Lenhardt’s medical

conditions would cause her to be absent from work more than four days

per month. She opined that Lenhardt could lift or carry no amount of

weight at all, and that Lenhardt could sit, stand, or walk for a total of

less than eight hours per workday.’ (Tr. 1573-75.)

The ALJ considered and found Dr. Norville’s opinions were “not

supported” by the claimant’s medical records, “wholly inconsistent” with

the objective medical evidence, and inconsistent with the claimant's own

statements in her previously filed function report. The ALJ also noted

that Dr. Norville’s opinion was provided on a form report, which courts

have recognized are generally entitled to little weight. Based on this, the

7 We note that the vocational expert testified at Lenhardt’s

administrative hearing that employers will typically tolerate no more

than 10% of time off-task, and no more than one day of absenteeism per

month. (Tr. 59.) Moreover, the exertional limitations proposed by Dr.

Norville would render Lenhardt incapable of performing even sedentary

work, and the sit/stand/walk limitation she proposed would preclude

Lenhardt from completing an 8-hour workday or a 40-hour workweek.

8 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.”).

9s

ALJ declined to afford Dr. Norville’s opinions “controlling weight,”

assigning them “little weight” instead. Specifically, the ALJ stated:

[T]he record does not support any of the limitations to

which [Dr. Norville] opines, each of which appears

designed to establish disability, rather than to

accurately reflect the claimant’s functioning during the

relevant period. For example, the record includes

virtually no evidence suggesting that he claimant’s

impairments so significantly impacted her ability to

concentrate, persist, and maintain pace during the

relevant period. Similarly, although the relevant

period record reflects a degree of joint pain, it does not

explicitly reflect debilitating standing and walking

limitations, or any significant sitting limitation.

Accordingly, the undersigned gave little weight to Dr.

Norville’s form report opinion, an opinion prepared five

years after the expiration of the claimant’s disability

insured status and one which is wholly inconsistent

with the objective evidence generated during the

relevant period and is inconsistent also in a number of

respects with the claimant’s own allegations as set

forth in her previously filed function report.

(Tr. 17-18 & n.1 (citation omitted).) Based on the foregoing, we find that

the ALJ’s decision declining to afford Dr. Norville’s opinion controlling

weight is supported by substantial evidence and was reached based upon

a correct application of the relevant law.

Even though Dr. Norville’s opinions are not entitled to controlling

weight, her opinions are nevertheless relevant evidence that must be

considered and weighed by the ALJ. See 20 C.F.R. § 404.1527(d); Ray v.

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Astrue, 649 F. Supp. 2d 391, 402 n.26 (E.D. Pa. 2009) (“Evidence that

does not deserve great weight does not necessarily deserve no weight at

all.”). The following factors must be considered to determine the

appropriate weight to which the opinion is entitled: (1) the length of

treatment and frequency of examination; (2) the nature and extent of the

treatment relationship; (3) the opinion’s support by medical evidence; (4)

the opinion’s consistency with the record as a whole; and (5) the treating

physician’s specialization. 20 C.F.R. § 404.1527(c)(2)-(5). None of these

factors may be omitted or disregarded by the ALJ in considering the

weight of the opinion. See Casillas v. Astrue, 671 F. Supp. 2d 635, 643-

44 (E.D. Pa. 2009) (stating that the ALJ “must consider” the factors set

forth in 20 C.F.R. § 404.1527(c) in determining what weight to give a

medical opinion); Waldron v. Astrue, No. 1:07-CV-2040, 2008 WL

4452350, at *1 (M.D. Pa. Sept. 30, 2008) (same). In addition, the ALJ

must consider any other factors that tend to support or contradict the

opinion, but only if brought to his or her attention. 20 C.F.R.

§ 404.1527(c)(6).

In determining the amount of weight to give Dr. Norville’s opinions,

the ALJ here clearly articulated his consideration of factors (1) and (2),

-ll-

expressly describing Dr. Norville as the claimant’s “treatment provider,”

whose report “indicated she has treated the claimant since 2008.” (Tr.

17.) With respect to factors (8) and (4), the ALJ’s decision clearly

documents his consideration of the opinion’s lack of support by medical

evidence, and its inconsistency with the record as a whole. (/d.) There is

no apparent indication in the record of Dr. Norville’s medical

specialization—her opinions are reported on a form that did not prompt

her to provide that information. In addition to the enumerated factors,

the ALJ considered the nature of the form report by which Dr. Norville’s

opinion was conveyed, which courts have recognized as “weak evidence”

in this context.? No additional factors appear to have been brought to the

ALJ’s attention for consideration.

Accordingly, we find that there is substantial evidence in the

administrative record to support the ALJ’s findings that Dr. Norville’s

opinions that Lenhardt would be “off task” more than 33% of the time

during a typical workday, that Lenhardt’s medical conditions would

cause her to be absent from work more than four days per month, that

Lenhardt could lift or carry no amount of weight at all, and that Lenhardt

9 See supra note 8.

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could sit, stand, or walk for a total of less than eight hours per workday

were entitled to “limited weight,” and his determination of the weight

given to Dr. Norville’s opinions was adequately explained and otherwise

based on a correct application of relevant law.

B. State Agency Medical Consultant Opinions

The plaintiff contends that the ALJ also erred in his evaluation of

the opinions of a non-examining state agency medical consultant, Dr.

Butcofski. She contends that the ALJ improperly credited Dr. Butcofski’s

medical opinions over those provided by Lenhardt’s treating physician,

Dr. Norville. The ALJ afforded Dr. Butcofski’s opinion “partial weight.”

An Ald is required to evaluate every medical opinion in the record,

regardless of the source of the opinion. 20 C.F.R. § 404.1527(c). Because

state agency medical and psychological consultants are “highly qualified

physicians and psychologists who are also experts in Social Security

disability evaluation,” the ALJ must consider their findings as opinion

evidence. Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *4; see also Poulos

v. Comm’ of Soc. Sec., 474 F.3d 88, 93 n.2 (3d Cir. 2007). In determining

the appropriate weight to which a non-treating source’s medical opinion

is entitled, the ALJ must consider the following factors: (1) whether the

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medical source actually examined the claimant; (2) the degree to which

the medical opinion is supported by relevant evidence; (3) the degree to

which the medical opinion is consistent with the record as a whole: and

(4) the medical source’s specialization. 20 C.F.R. § 404.1527(c)(1) & (3)—

(5). In addition, the ALJ must consider any other factors that tend to

support or contradict the medical opinion, but only if brought to his

attention. See id. § 404.1527(c)(6).

Generally, more weight will be given to the medical opinion of an

examining source than to the medical opinion of a non-examining source.

Id. § 404.1527(c)(1). In appropriate circumstances, however, the opinion

of a non-examining medical source, such as a state agency medical or

psychological consultant, may be entitled to more weight than the

opinion of an examining source, or even the opinion of a treating source.

Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3.

For example, the opinion of a State agency medical or

psychological consultant ... may be entitled to greater

weight than a treating source’s medical opinion if the

State agency medical or psychological consultant’s

opinion is based on a review of a complete case record

that includes a medical report from a specialist in the

individual’s particular impairment which provides

more detailed and comprehensive information than

what was available to the individual's treating source.

244 «

Id.

Here, the ALJ considered and expressly discussed Dr. Butcofski’s

opinions that Lenhardt

could perform work requiring light exertion, and

occasional postural activity, except she was precluded

from climbing ladders, ropes, or scaffolds. [Dr.

Butcofski] added the claimant was obliged to avoid

concentrated exposure to temperature extremes,

wetness, humidity, vibration, pulmonary irritants, and

hazards. These findings are generally consistent with

the relevant portion of the evidentiary record, most of

which was available to [Dr. Butcofski] at the time he

made [h]is report. However, the undersigned, in an

attempt to afford the claimant the benefit of any

reasonable doubt, finds her impairments precluded her

from kneeling, crouching, and crawling, and from

work-place exposure to hazardous machinery and

unprotected heights. Therefore, the undersigned gave

partial weight to this opinion.

(Tr. 17 (citations omitted).) In determining the appropriate weight to give

to the state agency medical consultant's opinions, the ALJ clearly

articulated his consideration of factors (1), (2), and (3), and there is

nothing in the record to indicate the specialization of the state agency

medical consultant. (See id.) While not expressly addressed in his

decision, the ALJ was undoubtedly aware that these agency consultants

are considered “experts in the evaluation of medical issues in disability

claims under the [Social Security] Act.” Soc. Sec. Ruling 96-6p, 1996 WL

1b

374180, at *2. Finally, the ALJ expressly addressed the fact that the state

agency medical consultant rendered his opinion without the benefit of

subsequently generated medical records, with the ALJ affording

Lenhardt “the benefit of the doubt” and adopting somewhat more

restrictive non-exertional limitations based on evidence that post-dated

the state agency medical consultant’s findings.

Accordingly, the Court finds that there is substantial evidence in

the administrative record to support the ALJ’s finding that the opinions

of the state agency consultant, Dr. Butcofski, were entitled to “partial

weight,” and that his determination of the weight given to them was

adequately explained and otherwise based upon a correct application of

relevant law.

III. CONCLUSION

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

finding that Lenhardt 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.

¥ 1&x

An appropriate order follows.

Dated: March _ 2% 22 S. ee.

SEPH F. ORITO, JR.

United States Magistrate Judge

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