Oduro v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ANTHONY KOJO ODURO, JR.,

Plaintiff, CIVIL ACTION NO. 3:21-cv-00078

v. (SAPORITO, M.J.)

KILOLO KIJAKAZI,1 Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM

In this matter, the plaintiff, Anthony Kojo Oduro, Jr., seeks judicial

review of the final decision of the Commissioner of Social Security

denying his applications for disability insurance benefits and

supplemental security income, pursuant to 42 U.S.C. § 405(g) and 42

U.S.C. § 1383(c)(3). 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 October 9, 2018, Oduro protectively filed applications for

disability insurance benefits and supplemental security income, both

asserting a disability onset date of October 6, 2018. His applications were

initially denied by state agency reviewers on November 6, 2018. The

plaintiff then requested an administrative hearing.

A hearing was held on October 30, 2019, before an administrative

law judge, Theodore Burock (the “ALJ”). In addition to the plaintiff

himself, the ALJ received testimony from an impartial vocational expert,

Patricia Scutt. The plaintiff was represented by counsel at the hearing.

On April 22, 2020, the ALJ denied Oduro’s applications for benefits

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

evaluation process in determining that Oduro 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 Oduro had not engaged in

substantial gainful activity since his alleged onset date. At step two, the

ALJ found that Oduro had the severe impairments of: hip impairment;

shoulder impairment; obesity; mild bipolar disorder; and impulse control

disorder.

At step three, the ALJ found that Oduro 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. In doing so, the ALJ considered Oduro’s

limitations in four broad functional areas as a result of his mental

disorders, finding moderate limitations in three functional areas—

(1) understanding, remembering, or applying information, (2) interacting

with others, and (3) adapting or managing oneself—and mild limitations

in the fourth area—concentrating, persisting, or maintaining pace. See

generally 20 C.F.R. §§ 404.1520a(c), 416.920a(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 Oduro’s residual functional capacity (“RFC”). See

generally Myers, 373 F. Supp. 3d at 534 n.4 (defining RFC). After

evaluating the relevant evidence of record, the ALJ found that Oduro had

the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and

416.967(b),2 with the following limitations:

[H]e could sit for 4 hours, stand for 3 hours, and walk

for 2 hours at one time; and sit for 6 hours, stand for 5

hours, and walk for 4 hours total in an 8-hour workday.

The claimant could continuously use his non-dominant

left upper extremit[y] for all functions, frequently use

his dominant right upper extremity for all functions,

and frequently use his bilateral lower extremities for

operation of foot controls. He could occasionally climb

ramps and stairs, balance, stoop, kneel[,] crouch[,] and

crawl, but could never climb ladders, ropes, or

scaffolds. The claimant could not be exposed to

unprotected heights, but could occasionally be exposed

to moving mechanical parts, operating motor vehicles,

humidity, wetness, cold, heat, and vibration, and

continuously exposed to dust, odors, and pulmonary

irritants. He could perform routine, repetitive tasks, as

required by unskilled labor, occasionally interact with

coworkers and supervisors, but could not have any

public interaction.

(Tr. 19–20.)

In making these factual findings regarding Oduro’s RFC, the ALJ

considered his symptoms and the extent to which they could reasonably

be accepted as consistent with the objective medical evidence and other

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 weighting up to 10 pounds.” 20 C.F.R.

§§ 404.1567(b), 416.967(b).

evidence of record. See generally 20 C.F.R. §§ 404.1529, 416.929; Soc. Sec.

Ruling 16-3p, 2017 WL 5180304 (revised Oct. 25, 2017). 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, 416.920c.

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

expert, the ALJ concluded that Oduro was unable to perform his past

relevant work as actually and generally performed.

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

performing other work that exists in significant numbers in the national

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

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

Oduro was capable of performing the requirements of representative

occupations such as bottle label inspector (DOT # 920.687-042), garment

bagger (DOT # 920.687-018), and hand bander (DOT # 920.687-026).

Based on this finding, the ALJ concluded that Oduro was not disabled for

Social Security purposes.

The plaintiff sought further administrative review of his claims by

the Appeals Council, but his request was denied on November 16, 2020,

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

Commissioner subject to judicial review by this court.

The plaintiff timely filed his complaint in this court on January 13,

2021. 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 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); id. § 1383(c)(3); Myers, 373 F.

Supp. 3d at 533 (describing standard of judicial review for social security

disability insurance benefits and supplemental security income

administrative decisions).

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

substantial evidence because: (1) the ALJ erred in failing to consider the

plaintiff’s applications under the seven-step “medical improvement”

standard applicable to a reinstatement of benefits proceeding, rather

than the usual five-step sequential evaluation process, because he

previously had been awarded supplemental security income (“SSI”)

benefits, which were terminated when he received a litigation settlement

that caused him to exceed the applicable countable resources limit; (2)

the ALJ erred in determining that an alleged intellectual disability /

learning disability 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; (3) the ALJ erred in finding

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

sequential evaluation process, despite compelling evidence to the

contrary; (4) the ALJ failed to properly evaluate prior administrative

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

medical consultant; (5) the ALJ failed to properly evaluate the medical

opinion of the plaintiff’s treating mental health counselor; (6) the ALJ

erred in failing to order a consultative mental examination; and (7) the

ALJ erred in failing to properly consider the plaintiff’s non-exertional

reaching impairment under Social Security Ruling 83-13.3

3 The plaintiff’s brief articulated three conclusory, extremely

general claims of error: (1) the ALJ’s RFC determination failed to include

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A. Seven-Step “Medical Improvement” Standard

At his hearing before the ALJ, Oduro’s attorney noted that Oduro

had previously received SSI benefits, which had been discontinued when

he received a $100,000 personal injury settlement, causing him to exceed

the applicable countable resources limit for SSI program eligibility. (Tr.

38.) In subsequent correspondence addressed to the ALJ, Oduro’s

attorney advised that Oduro had received a distribution of $100,000 from

the litigation settlement when he turned twenty-one,4 which caused the

suspension or termination of his SSI benefits. (Tr. 276–77, 278–79.)

Oduro and his parents, however, no longer had any documentation of the

settlement or any other information. (Id.) There is no evidence in the

administrative record concerning this previous award of SSI benefits. By

all limitations caused by his severe impairments; (2) the ALJ’s RFC

determination failed to include all limitations cause by impairments the

ALJ found to be non-severe, or barely mentioned; and (3) the ALJ’s RFC

determination was defective because the ALJ failed to afford appropriate

weight to medical opinions on which it was based. 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.

4 The attorney’s letters imply that this litigation settlement had

been obtained while Oduro was a minor, and then held in trust until he

turned twenty-one. Oduro was born in August 1987, suggesting that he

received this distribution in or soon after August 2008. (Tr. 276–77, 278–

79.)

the time he had protectively filed the instant applications for disability

benefits in November 2018, these assets had been exhausted.5

Oduro contends that the ALJ erred in considering his application

for benefits anew, applying the usual five-step sequential evaluation

process. Instead, Oduro contends that the ALJ should have applied the

more favorable seven-step “medical improvement” standard typically

applicable to proceedings for reinstatement of suspended SSI benefits,

set forth in 20 C.F.R. § 416.994.6 (Doc. 19, at 19–21.)

5 In addition, we note that Oduro had engaged in sufficient paid

work activity in the interim to qualify for disability insurance benefits.

6 The plaintiff has cited 20 C.F.R. § 404.1594 in his brief on appeal

(Doc. 19, at 19–20), and in his earlier request for administrative review

by the Appeals Council (Tr. 7–8; see also Tr. 286–87.). But the plaintiff’s

prior benefits award was under the Title 16 SSI program; he did not

previously receive benefits under the Title 2 disability insurance benefits

program. Thus, 20 C.F.R. § 404.1594 is entirely inapposite. We have

substituted the appropriate regulation, 20 C.F.R. § 416.994, in its place

for the purposes of this memorandum opinion.

In addition, we note that the plaintiff has also referenced the

agency’s Program Operations Manual System (“POMS”), arguing that

the ALJ should have considered his applications as a request for

reinstatement of SSI benefits under POMS SI 02301.205 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

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Under the Social Security Act and its implementing regulations, an

unmarried individual does not qualify for SSI benefits if his or her

countable resources exceed $2,000. See 42 U.S.C. § 1382(a)(1)(B), (3)(B);

20 C.F.R. § 416.1205(a), (c). After a claimant is found to be disabled and

entitled to receive SSI benefits, the regulations provide that the

recipient’s eligibility for those monthly benefits will be suspended if his

or her countable resources exceed $2,000. See 20 C.F.R. § 416.1324(a).

The payment of suspended SSI benefits may be resumed the month after

the recipient’s countable resources no longer exceed the $2,000 limit; a

new application for benefits is not required. See id. § 416.1324(b); see also

Gordon v. Sec’y of Health & Hum. Serv., 803 F.2d 1071, 1073 (9th Cir.

1986). But if a recipient’s benefits remain suspended for twelve

consecutive months, the SSI benefits will be terminated by operation of

law, and resumption or reinstatement is no longer possible; a new

application for benefits is required. See 20 C.F.R. § 416.1335; Gordon, 803

F.2d at 1074 (“Under 20 C.F.R. § 416.1335, eligibility for benefits is

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.”).

terminated when twelve calendar months have elapsed after suspension

for ineligibility if the beneficiary has not reestablished eligibility for

benefits.”); see also Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1172 (9th

Cir. 2008); Mayes v. Soc. Sec. Admin., 190 Fed. App’x 183, 186 (3d Cir.

2006) (per curiam); Warren v. Bowen, 804 F.2d 1120, 1121 (9th Cir. 1986)

(per curiam); Van Gilder v. Colvin, Civil Action No. 12-1037, 2013 WL

1891345, at *4 (W.D. Pa. Apr. 16, 2013), report & recommendation

adopted by 2013 WL 1891350 (W.D. Pa. May 6, 2013); Brennan v. Astrue,

501 F. Supp. 2d 1303, 1309 (D. Kan. 2007).

Here, although the details are not clearly set out by the record, the

plaintiff’s prior award of SSI benefits was clearly suspended, and then

terminated by operation of law, due to excess resources several years

before he filed the two disability benefits applications currently before

the court.7 The administrative appeal currently before us arises out of an

April 2020 ALJ decision denying applications for disability benefits filed

in November 2018, not the administrative decision suspending Oduro’s

7 The Commissioner’s brief contains a representation by counsel

that Oduro’s previous award of SSI benefits had been approved in

October 2001 and then suspended in July 2010 due to excess resources.

(Doc. 23, at 34 n.11.)

SSI benefits several years earlier. Contrary to the plaintiff’s argument,

there is simply no basis for consideration of his applications under the

seven-step “medical improvement” standard set forth in 20 C.F.R.

§ 416.994. See Zavilla v. Astrue, Civil Action No. 09-133, 2009 WL

3364853, at *17 (W.D. Pa. Oct. 16, 2009) (“[T]he ‘medical improvement’

standard is not applied when a claimant’s eligibility for benefits was

terminated and he later re-applies for benefits. After a termination of

benefits, a claimant is required to file a new application[,] which is

evaluated under the familiar five-step standard . . . .”); see also Stubbs-

Danielson, 539 F.3d at 1172 (“[T]here is no basis for applying a

presumption of continuing disability where, as here, a claimant’s

reapplication comes at least 6 years after a termination of benefits and

more than 15 years after her previously successful application.”); Warren,

804 F.2d at 1121 (no presumption of continuing disability for application

filed almost three years after prior award of SSI benefits was suspended).

Because this case involved new applications for benefits, rather than a

continuing disability review, the ALJ properly applied the five-step

sequential evaluation process provided in 20 C.F.R. §§ 404.1520 and

416.920, rather than the seven-step “medical improvement” standard

provided in 20 C.F.R. § 416.994 for continuing disability reviews.

Brennan, 501 F. Supp. 2d at 1309; see also Van Gilder, 2013 WL 1891345,

at *4.

Accordingly, we find no error in the ALJ’s failure to apply the

medical improvement standard set forth in 20 C.F.R. § 416.994.

B. Step Two Non-Medically Determinable Impairments

At step two, the ALJ considered whether Oduro had medically

determinable impairments of intellectual disability or learning disorder.

The ALJ reviewed the medical evidence of record, stating:

[T]he record contains no medical evidence to

substantiate either impairment results from

anatomical, physiological or psychological

abnormalities which are demonstrable by medically

acceptable clinical and laboratory diagnostic

techniques as described in [42 U.S.C. § 423(d)(3)] and

[§ 1382c(a)(3)(D)]. While he testified during the

hearing that he has difficulty with reading and

comprehension, the undersigned notes that he

indicated that he was the person who completed his

Disability Report and his Function Report. Although

there is some discussion in his September 2019

psychiatric evaluation that the claimant had a learning

disability, this was based on his self-reporting and not

independent diagnostic testing. In fact, emergency

psychiatric records from when the claimant was a child

reflects that he was in special education secondary to

behavioral problems rather than cognitive limitations.

Furthermore, during his consultative internal

medicine examination, he identified one of his

strengths as his intelligence. Therefore, the

undersigned finds that the claimant’s alleged

intellectual disability/learning disorder is a non-

medically determinable impairment.

(Tr. 17 (citation omitted).) As a consequence, the ALJ did not consider

any impairments as a result of an intellectual disability or learning

disorder in his evaluation of Oduro’s RFC.

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). But, as noted by the ALJ, the only

mention of an intellectual disability or learning disorder in the medical

records before the ALJ were psychiatric treatment notes reflecting

Oduro’s subjective report of an unspecified learning disability. (Tr. 536

(“The patient is only able to provide a limited amount of history. He lacks

details, and this may be due to a learning disability that he reports.”).)

The plaintiff fails to identify any other medical evidence to support his

allegation of an intellectual disability or learning disorder.

A plaintiff’s own statements “of symptoms, a diagnosis, or a medical

opinion” may not be used to establish the existence of a medically

determinable impairment. 20 C.F.R. §§ 404.1521, 416.921; see also

Delgado v. Comm’r of Soc. Sec., Civ. No. 20-283, 2021 WL 1686704, at *5

(D.N.J. Apr. 29, 2021). Thus, in the absence of any objective medical

evidence of an intellectual disability or learning disorder, we find there

is substantial evidence to support the ALJ’s finding that Oduro’s alleged

intellectual disability or learning disorder were not medically

determinable impairments. See Scipio v. Comm’r of Soc. Sec., 611 Fed.

App’x 99, 101–02 (3d Cir. 2015) (per curiam). Because the ALJ is only

required to consider medically determinable impairments of which he is

aware, see 20 C.F.R. §§ 404.1521, 404.1545(a)(2), 416.921, 416.945(a)(2),

the ALJ’s failure to consider the plaintiff’s alleged mental impairments

intellectual disability or learning disorder in later determining his 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”).

C. Step Two Severity Determination

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

various other physical medical conditions were not severe impairments.

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 Oduro’s favor at step two, finding that he

had multiple severe physical and mental 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.

D. 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 his administrative claim for

benefits in November 2018. Thus, a relatively new regulatory framework

governing the evaluation of medical opinion evidence applies to this

case.8

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

entire argument on this point—that his treating mental health

counselor’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.,

Gonzalez v. Kijakazi, Case No. 3:21-cv-00012 (M.D. Pa. filed Aug. 9, 2021)

(treating physician), ECF No. 15; Pl.’s Br., Broaddus v. Kijakazi, Case

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

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“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

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

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

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. Indeed, even under the old regulations, a mental

health counselor’s opinion would never be entitled to controlling weight,

as a counselor or therapist was not considered an “acceptable medical

source.” See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (explaining

requirements for a treating source’s medical opinion to be assigned

“controlling weight”); id. §§ 404.1527(a)(1), 416.1527(a)(1) (limiting

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

§§ 404.1502(a), 416.902(a) (defining “acceptable medical source,” but not

including mental health counselors or therapists). In any event, we

encourage counsel to revisit and revise his legal boilerplate on this issue

before filing any future briefs.

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),

416.920c(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,

416.920c(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), 416.920c(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), 416.920c(b)(2); Michelle K., 527 F. Supp. 3d

at 481; compare 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1)

(supportability), and id. §§ 404.1520c(c)(2), 416.920c(c)(2) (consistency),

with id. §§ 404.1527(c)(3), 416.927(c)(3) (supportability), and id. §§

404.1527(c)(4), 416.927(c)(4) (consistency).9 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), 416.920c(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),

416.920c(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), 416.920c(b)(3); Michelle K., 527 F. Supp. 3d at 482.

9 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), 416.920c(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. §§ 404.1520(c)(2),

416.920c(c)(2).

1. State Agency Psychological Consultant

The prior administrative findings in this case included the opinion

of a state agency psychological consultant, Melissa Franks, Psy.D.,

recorded on January 11, 2019, who found no medically determinable

mental impairments. (Tr. 73, 87.) Upon review of Dr. Frank’s opinion, the

ALJ found it “not persuasive” because “the longitudinal medical evidence,

as presently constituted, supports that he has severe mental

impairments and a moderate degree of mental functional limitation in all

areas of mental functioning, except for his ability to concentrate, persist,

or maintain pace.” (Tr. 26.)

The plaintiff does not appear to challenge the ALJ’s evaluation of

Dr. Franks’s findings and opinion with respect to Oduro’s mental

functional limitations.

2. State Agency Medical Consultant and Consultative

Examining Physician

The ALJ considered the opinions of a state agency medical

consultant and a consultative examining physician together, finding

them both to be “most persuasive,” but finding the non-examining

medical consultant’s opinions to be “more persuasive” than those of the

consultative examining physician. (Tr. 25–26.)

The prior administrative findings in this case included the opinions

of a state agency medical consultant, Candelaria Legaspi, M.D., recorded

on January 22, 2019, who had found the claimant capable of lifting and

carrying up to 20 pounds occasionally and up to 10 pounds frequently.

Dr. Legaspi found that Oduro was capable of standing or walking for a

total of four hours in an eight-hour workday or sitting for a total of six

hours in an eight-hour workday. Dr. Legaspi found that Oduro was

capable of frequent crouching, crawling, or climbing of ramps or stairs,

but only occasional climbing of ladders, ropes, or scaffolds. Dr. Legaspi

found that Oduro’s right shoulder pain limited his ability to reach

overhead, in front, or laterally with his right upper extremity. She found

that Oduro should avoid even moderate exposure to hazards such as

moving machinery or unprotected heights. (Tr. 75–77, 89–91.)

On January 7, 2019, Oduro was seen and examined by a

consultative examining physician, Ahmed Kneifati, M.D. On

examination, Dr. Kneifati observed that Oduro appeared to be in no acute

distress, with normal gait, he could walk on his heels and toes without

difficulty, he was limited to 70% in squatting, he exhibited normal stance,

he needed no help changing clothes or getting on and off the exam table,

and he was able to rise from a chair without difficulty. Dr. Kneifati found

no scoliosis, kyphosis, or abnormality in the thoracic spine, straight-leg

raise was negative bilaterally both seated and supine, he observed no

evident joint deformity, the joints were stable, and he found tenderness

in the lateral left hip, but no redness, heat, or effusion. Dr. Kneifati noted

5/5 strength in all extremities, and he observed no evident muscle

atrophy. Dr. Kneifati recorded a diagnosis of left hip pain status post left

hip fracture with fixation with screws, and a fair prognosis. Dr. Kneifati

also completed an agency form report on Oduro’s ability to do work-

related activities. Dr. Kneifait opined that Oduro was capable of lifting

or carrying up to 10 pounds continuously, up to 20 pounds frequently,

and up to 50 pounds occasionally. Dr. Kneifati found that Oduro was

capable of sitting up to 4 hours at a time or 6 hours total in an 8-hour

workday, standing up to 3 hours at a time or 5 hours total in an 8-hour

workday, and walking up to 2 hours at a time or 4 hours total in an 8-

hour workday. Dr. Kneifati found Oduro limited to no more than frequent

(1/3 to 2/3 of the time) use of his left foot to operate foot controls, but no

limitations to the use of his right foot or to the use of either hand to reach,

handle, finger, feel, push or pull. Dr. Kneifati opined that Oduro was

limited to only occasional balancing, stooping, and climbing of stairs,

ramps, ladders, or scaffolds, and no more than frequent kneeling,

crouching, and crawling. Dr. Kneifati found that Oduro was subject to

certain environmental limitations, including only occasional exposure to

unprotected heights, moving mechanical parts, operation of a motor

vehicle, humidity or wetness, extreme cold, or extreme heat. (Tr. 357–

70.)

In evaluating Dr. Legaspi’s and Dr. Kneifati’s opinions together, the

ALJ found that:

In the absence of . . . a pervasive statement of

limitations by one of claimant’s treating medical

providers supporting the extent of the alleged

limitations, the undersigned finds the opinions of Dr.

Kneifati and the State Agency’s medical consultant,

Candelaria Legaspi, M.D., are the most persuasive, but

the latter opinion is more persuasive. . . . The

undersigned acknowledges that these consultants did

not have a treating relationship with the claimant and

while Dr. Kneifati examined him, it was only on a

single occasion. Additionally, these medical

consultants did not have the opportunity to review the

complete medical evidence, personally observe the

claimant’s presentation at an administrative hearing,

or listen to his testimony. Relying on the overall record,

including the claimant’s testimony at the hearing, and

additional medical evidence received at the hearing

level, the undersigned finds that Dr. Legaspi’s opinion

is more consistent with the preponderance of all the

evidence while Dr. Kneifati’s opinion, while consistent

with his own examination of the claimant fails to

account for the claimant’s right upper extremity

impairment. Both consultants appropriately limited

the claimant’s exertional and postural activities

because of his hip impairment, but Dr. Legaspi’s

opinion includes additional limitations due to the

exacerbating effects of the claimant’s obesity. As the

totality of the objective evidence better supports Dr.

Legaspi’s opinion, the undersigned finds that this

assessment is more persuasive than that of Dr.

Kneifati. Nevertheless, as both consultants are

specialists in their respective fields and are familiar

with the definitions and evidentiary standards used by

the Agency, the undersigned finds that their

assessments are persuasive to the extent described.

(Tr. 25–26 (citations 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 his consideration of other factors, including each doctor’s non-

treating or non-examining relationship with the claimant, each doctor’s

specialization, each doctor’s familiarity with the other evidence in the

claim, and each doctor’s understanding of the agency’s disability

program’s policies and evidentiary requirements.

The plaintiff primarily objects to this evaluation of the state agency

medical consultant’s findings and opinions based on the fact that Dr.

Legaspi never examined Oduro 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 appears to suggest that the ALJ’s evaluation of

the opinions of these medical sources was lacking because it failed to

more robustly cite specific medical evidence that he found supportive of

the consultant’s 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 in this case, including the findings and medical

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

Legaspi, and the ALJ’s evaluation of the medical opinions of the

consultative examining physician, Dr. Kneifati, are supported by

substantial evidence and were reached based upon a correct application

of the relevant law.

3. Treating Mental Health Counselor

On September 27, 2019, Oduro’s treating mental health counselor,

Alejandro Alvarez, MDiv, CCJAP, completed a mental residual

functional capacity assessment. Alvarez noted that Oduro had been

treating with his practice on a biweekly basis for about five months. He

reported a current diagnosis of bipolar disorder with no prognosis.

Alvarez opined that Oduro had mild or moderate limitations in various

aspects of each of the four areas of mental functioning: understanding,

remembering, or applying information; interacting with others;

sustained concentration, persistence, or pace; and adapting or managing

oneself. Alvarez opined that Oduro’s mental impairment would

substantially interfere with his ability to work on task at least 15% of the

time. He further opined that Oduro would miss 10 days of work each

month because of his mental impairment or treatment. (Tr. 478–82.)

Upon review of Alvarez’s opinion, the ALJ found it only “partially

persuasive.” In particular, the ALJ found that:

The claimant’s therapy notes support the counselor’s

opinion regarding . . . his moderate limitations in the

areas of understanding, remembering, and applying

information, interacting with others, and adapting or

managing oneself. However, Counselor Alvarez’s

statements about extreme absenteeism and time off

tasks, which fail to describe the claimant’s functional

abilities or limitation, or the like, are statements on

issues reserved to the Commissioner. Statements on

issues reserved to the Commissioner are inherently

neither valuable nor persuasive to the issue of whether

the claimant is disabled. These statements are

inconsistent with the preponderance of all the

evidence, including the claimant’s therapy notes and

his admissions that he found mental health treatment

beneficial in controlling his symptoms. The counselor’s

statements are also internally inconsistent,

contradictorily finding that the claimant could work on

a regular and sustained basis but he would miss work

10 days per month. The undersigned acknowledges

that the counselor had a treating relationship with the

claimant, but when he provided the opinion, he had

only treated the claimant for five months. Therefore,

the undersigned finds that this opinion is only partially

persuasive.

(Tr. 26–27 (citations 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 his consideration of other factors, including the counselor’s

treating relationship with the claimant and the short duration of that

relationship at the time of the assessment. Moreover, the ALJ correctly

determined that the counselor’s statements regarding excessive

absenteeism and an inability to “work on a regular and sustained basis

at least 15% of the time” were “inherently neither valuable nor

persuasive” under the applicable regulations which expressly and

exclusively reserve to the Commissioner (or the ALJ as her designee) the

ultimate issue of whether the claimant is disabled. See 20 C.F.R.

§§ 404.1520b(c)(3)(i), 416.920b(c)(3)(i) (“Statements that you are or are

not . . . able to perform regular or continuing work . . . “); see also Knittle,

2021 WL 5918706, at *6. Indeed, as statements on issues reserved to the

Commissioner, the ALJ was under no obligation to discuss these

statements by Alvarez at all under the new regulations, much less find

them persuasive. See 20 C.F.R. §§ 404.1520b(c), 416.920b(c) (“Because

the evidence listed in paragraph[] . . . (c)(3) of this section is inherently

neither valuable nor persuasive to the issue of whether you are

disabled . . . , we will not provide any analysis about how we considered

such evidence in our determination or decision . . . .”). In any event, the

ALJ further considered and found these statements to be inconsistent

with the other evidence of record.

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

and statements on issues reserved to the Commissioner by treating

counselor Alvarez is supported by substantial evidence and was reached

based upon a correct application of the relevant law.

E. Consultative Examination

The plaintiff contends that the ALJ should have obtained a

consultative mental health examination of Oduro. The agency’s

regulations provide that it “may purchase a consultative examination to

try to resolve an inconsistency in the evidence or when the evidence as a

whole is insufficient to support a determination or decision on [a] claim.”

20 C.F.R. §§ 410.1519a(b), 416.919a(b). An ALJ has “broad latitude in

ordering consultative examinations.” Hawkins v. Chater, 113 F.3d 1162,

1166 (10th Cir. 1997).

The decision to order a consultative examination is

within the sound discretion of the ALJ unless the

claimant establishes that such an examination is

necessary to enable the ALJ to make the disability

decision. Where the medical evidence in the record is

inconclusive, a consultative examination is often

required for proper resolution of a disability claim.

Chalfant v. Comm’r of Soc. Sec., Civil Action No. 4:20-CV-1719, 2022 WL

838118, at *5 (M.D. Pa. Mar. 21, 2022) (citations, internal quotation

marks, and brackets omitted). In this case, however, while the medical

evidence may not compel the conclusion the plaintiff desires, it is not

inconclusive. Because a consultative mental health examination was not

necessary to enable the ALJ to make his disability decision, we find no

abuse of discretion in the ALJ’s decision not to order one.

Accordingly, we find that the ALJ adequately developed the record

in the administrative proceedings below. Thus, a remand on these

grounds is not warranted.

F. Consideration of Non-Exertional Reaching limitation

The plaintiff contends in his brief that the ALJ erred in failing to

consider the reaching limitation caused by his shoulder impairment

under Social Security Ruling 83-13. But Social Security Ruling 83-13 was

superseded in 1985 by Social Security Ruling 85-7, which was, in turn,

superseded later that same year by Social Security Ruling 85-15. See Soc.

Sec. Ruling 83-13, 1983 WL 31261, superseded by Soc. Sec. Ruling 85-7,

1985 WL 56860, superseded by Soc. Sec. Ruling 85-15, 1985 WL 56857.

In essence, Social Security Ruling 85-15 recognizes that “[s]ignificant

limitations of reaching . . . may eliminate a large number of occupations

a person could otherwise do. Varying degrees of limitations would have

different effects, and the assistance of a [vocational expert] may be

needed to determine the effects of the limitations.” Soc. Sec. Ruling 85-

15, 1985 WL 56857, at *7. In this case, the ALJ did indeed consult a

vocational expert to determine how Oduro’s non-exertional limitations,

including a limitation in his ability to reach with his right upper

extremity, would affect the available occupational base. Moreover, the

plaintiff has failed to articulate any reason why the ALJ’s decision failed

to comply with the requirements of Social Security Ruling 85-15, the

relevant policy ruling that has been in effect now for several decades.

Accordingly, we find no error in the ALJ’s failure to consider the

plaintiff’s non-exertional reaching limitations under Social Security

Ruling 83-13.

III. CONCLUSION

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

finding that Oduro 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 25, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge