Opinion

Gorney v. Commissioner of Social Security

Court: District Court, M.D. Pennsylvania
Filed: Aug 12, 2022
Cited by: 0 cases
Authority: More cited than 29.1%

agreeing that “SSR 96–2p does not prohibit the ALJ from crediting some parts of a treating source's opinion and rejecting other portions”

How later courts described this case

agreeing that “SSR 96–2p does not prohibit the ALJ from crediting some parts of a treating source's opinion and rejecting other portions”
“[T]he court has plenary review of all legal issues . . . .”
comparing the substantial-evidence standard to the deferential clearly- erroneous standard
“The Secretary’s determination as to the status of a claim requires the correct application of the law to the facts”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID EDWARD GORNEY, : Civil No. 1:20-cv-2411

Plaintiff :

v. :

: (Magistrate Judge Carlson)

KILOLO KIJAKAZI, :

Acting Commissioner of Social Security1, :

Defendant :

MEMORANDUM OPINION

I. Introduction

David Gorney was 27 years old when he applied for Social Security benefits

alleging that he was totally disabled from performing any work. (Tr. 32, 207-12).

While Gorney was an active online gamer, he had no past relevant work history. (Tr.

32). According to Gorney’s treatment records, at the time that this disability

application was pending, Gorney shared with his caregivers that his “future plan is

SSI and building his online life, potential career, he was quite clear about this

direction.” (Tr. 581). Further, Gorney “hesitated” when his treatment provider said

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on

July 9, 2021. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure and 42 U.S.C. § 405(g) Kilolo Kijakazi is substituted for Andrew

Saul as the defendant in this suit.

that they should “discuss ability more than disability, life beyond online gaming and

communities.” (Id.)

In Gorney’s case, the ALJ was presented with a claimant who had an extensive

medical history and multiple severe impairments. However, the degree to which

these impairments were totally disabling was the subject of significant dispute

among medical sources, with Gorney’s treating physician opining that he could not

even engage in a limited range of sedentary work while every other medical source

opined that Gorney had far greater work capabilities. Ultimately, considering all of

this evidence, the ALJ fashioned a very restrictive sedentary work RFC for Gorney,

but found that he could still perform this limited range of work and denied his

disability application.

Gorney now appeals this decision, arguing that the ALJ erred in rejecting the

treating source opinion and in fashioning an RFC which was not explicitly grounded

upon a specific medical opinion. In considering this disability determination we are

enjoined to apply a deferential standard of review to Social Security appeals, one

which simply calls for a determination of whether substantial evidence supported

the ALJ’s decision. Mindful of the fact that, in this context, substantial evidence is

a term of art which “means only— ‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion,’” Biestek v. Berryhill, 139 S. Ct.

1148, 1154 (2019), we find that substantial evidence supported the ALJ’s findings

in this case. Therefore, for the reasons set forth below, we will affirm the decision

of the Commissioner denying this claim.

II. Statement of Facts and of the Case

On November 7, 2016, David Gorney applied for supplemental security

benefits, alleging that he had become disabled beginning on April 1, 2012. (Tr. 15).

Gorney was born in 1989 and was 27 years of age at the time that he submitted this

disability application. (Tr. 32). He was a high school graduate and had attended three

years of college, having reportedly gone to college in order to get into online gaming.

(Tr. 97). However, Gorney had not completed his degree work due to his

impairments. (Id.) Gorney had no prior employment history and had never

performed any significant past relevant work at the time that he applied for Social

Security benefits. (Tr. 32, 212-213).

A. Gorney’s Clinical History

Gorney’s presenting medical concerns and impairments included morbid

obesity, peripheral neuropathy, diabetes, venous insufficiency, degenerative disc

disease, and depression. With respect to these medical conditions, the clinical record

confirmed that Gorney suffered from these ailments, but was somewhat more

equivocal regarding whether the conditions were totally disabling in their severity.

Thus, it was apparent that Gorney, who was five feet six or seven inches tall,

and weighed between 350 and 380 pounds, was morbidly obese. (Tr. 221, 304).

Gorney’s caregivers ascribed this obesity to his sedentary lifestyle and excess caloric

intake and recommended diet changes and increased exercise. (Tr. 302, 304).

Gorney’s clinical treatment record from 2016 through 2019, however, presented a

mixed picture regarding the severity and disabling effects of his medical

impairments.

For example, in 2016, it appears that Gorney had more than a dozen treatment

appointments with his family practice, mental health providers, and neurologists.2

During these examinations Gorney’s weight fluctuated between 376 and 380

pounds. (Tr. 302, 305, 332, 338, 341). Despite his morbid obesity, treatment notes

from 2016 provided differing accounts of the degree to which Gorney was physically

impaired. At various times his gait was described as normal or stable and it was

indicated that he walked without a cane. (Tr. 304, 305, 352). On other occasions he

was described as walking with a “waddling” gait (Tr. 315, 332, 336), and it was said

that he used a cane to ambulate. (Tr. 336). However, the cane usage was

characterized as limited or minimal and on at least one occasion it was reported that

2 Tr. 302, 305, 309, 310, 312, 316, 317, 319, 328, 334, 338, 345, 349.

Gorney almost left his home without his cane because of the improvement in his

condition. (Tr. 310, 316, 319).

These 2016 treatment records further documented Gorney’s complaints of

decreased range of motion, (Tr. 302), but also consistently reported bilateral muscle

strength of 4+ to 5 and described his grip strength as normal. (Tr. 304, 336, 345, 350,

353). Moreover, test results from 2016 did not identify objective evidence of

disabling impairments. For example, a May 11, 2016 x-ray of Gorney’s left wrist

and ankle yielded largely unremarkable findings, (Tr. 339), and a February 2016

MRI revealed no intracranial abnormalities. (Tr. 927).

Likewise, Gorney’s mental health treatment records from 2016 disclosed that

his judgment, insight and cognition were grossly intact, and that he was fully

oriented. (Tr. 305, 309, 310, 316, 317, 319). These treatment records observed,

however, that Gorney lacked motivation, tended to focus on barriers, engaged in

excessive online gaming activities, and was not invested in the idea of spending less

time online. (Tr. 305-06, 311). Gorney reported spending five to eight hours each

day at the computer watching videos. (Tr. 349). Moreover, a recurring theme in

Gorney’s discussions with his care givers was his interest in securing disability

benefits. (Tr. 306, 320, 334).

Gorney’s clinical treatment records in 2017 painted a similarly equivocal

picture regarding the extent to which his medical conditions were wholly disabling.

In 2017 Gorney was examined and treated by mental health professionals, his family

practice, pain clinic specialists, and neurologists on more than fifteen occasions.3

These treatment notes continued to document Gorney’s overall lack of motivation

and interest in securing disability benefits. For example, on January 24, 2017, during

a treatment session, Gorney explained that his “future plan is SSI and building his

online life, potential career, he was quite clear about this direction.” (Tr. 581).

Further, Gorney “hesitated” when his treatment provider suggested that they should

“discuss ability more than disability, life beyond online gaming and communities.”

(Id.)

Gorney’s 2017 treatment history documented his on-going obesity, with

Gorney’s weight fluctuating between 376 and 382 pounds. (Tr. 530, 536, 540, 547,

555, 565, 576, 579). Physically it was reported that he had good bilateral strength

rated at 4+ to 5. (Tr. 531, 536, 552, 555, 565-66, 568). As for Gorney’s gait, at

various times it was described as stable and normal. (Tr. 531, 555). During a number

of clinical encounters, medical staff observed that Gorney was walking adequately

without a cane, (Tr. 582), and had “no difficulty with gait or balance.” (Tr. 540, 546,

3 Tr. 521, 529, 536, 538, 546, 550, 553, 555, 565, 568, 571, 576, 578, 580, 582.

550). However, in other instances staff stated that Gorney used a cane to ambulate

and displayed an antalgic gait. (Tr. 555-565, 571, 573). Once again, Gorney’s test

results yielded little evidence of disabling impairments. Thus, an August 18, 2017

evaluation of a left wrist x-ray was unremarkable beyond documenting what

appeared to be an old wrist injury. (Tr. 553). Furthermore, neurological studies

conducted in May of 2017 revealed only a mild neuropathy. (Tr. 569).

During some seven treatment appointment in 2018,4 Gorney’s weight varied

between 370 and 381 pounds. (Tr. 641,654, 674-75, 705, 787, 802, 819). Gorney

consistently complained to his caregivers about pain which impaired his ambulation

and movement, (Tr. 674-75, 783, 798), but he had good hand grip strength which

was rated 5/5 bilaterally. (Tr. 657, 820). Gorney’s treating sources described his gait

at various times in 2018 as “normal,” “waddling,” and steady or waddling with the

assistance of a cane. (Tr. 642, 675, 787, 802). Further, a neurologist review of

Gorney’s EMG testing disclosed only very mild polyneuropathy. (Tr. 660).

Finally, Gorney’s treatment records from 2019 documented a modest weight

loss on his part, with Gorney’s weight fluctuating between 349 and 360 pounds. (Tr.

880, 900, 1014). According to Gorney’s caregivers, he retained 5/5 bilateral strength,

(Tr. 931), had a stable gait, (Tr. 930), but on occasion ambulated with a cane. (Tr.

4 Tr. 638, 654, 672, 702, 783, 798, 819.

880, 901). In August of 2019, Gorney received Botox treatment for chronic

migraines, (Tr. 982), and an MRI study of his lumbar spine revealed only mild to

moderate degenerative disc disease. (Tr. 1012-1013).

B. The Medical Opinion Evidence

Given this mixed and equivocal picture that emerged from Gorney’s treatment

history, medical professionals who examined this case reached contrasting

conclusions regarding the degree to which Gorney’s physical and emotional

impairments were totally disabling, although the greater weight of the medical

opinion evidence favored the view that Gorney could perform some work. Thus,

when the state agency experts, Dr. Melissa Franks and Dr. Tarun Ray, evaluated

Gorney’s mental and physical impairments in February of 2017, they concluded that

he experienced only moderate mental limitations and could perform work at a

medium exertional level. (Tr. 115-125). Dr. Robert Sklaroff, an outside medical

consultant who reviewed Gorney’s medical records in February of 2019, had a

somewhat more guarded assessment of Gorney’s capabilities but concluded that he

could perform a range of light work. (Tr. 854-863).

In stark contrast to these medical opinions, Dr. Francis Bobek, Gorney’s

primary care physician, submitted reports in May of 2018 which described Gorney

as completely disabled both physically and emotionally and opined that he was

unable to perform even a limited range of sedentary work. (Tr. 626-637). Dr. Bobek

did not reconcile this highly restrictive medical opinion with his own treatment

records, which presented a much more mixed and equivocal picture regarding

Gorney’s abilities and impairments.

It was on this record that Gorney’s disability application came to be heard by

the ALJ.

C. The ALJ’s Hearing and Decision

It is against the backdrop of this evidence that the ALJ conducted two hearings

in Gorney’s case on December 8, 2018 and October 16, 2019. (Tr. 39-49, 85-104).

During these hearings the ALJ received testimony from Gorney and various

vocational experts. Following these hearings, on November 20, 2019, the ALJ issued

a decision denying this application for benefits. (Tr. 12-33). In that decision, the ALJ

first concluded that Gorney had not engaged in substantial gainful activity since

November 2016, his application date. (Tr. 17). At Step 2 of the sequential analysis

that governs Social Security cases, the ALJ found that Gorney’s depression, obesity,

diabetes, neuropathy, venous insufficiency, and degenerative disc disease were

severe impairments (Id.)

At Step 3, the ALJ determined that none of these impairments met or

medically equaled the severity of one of the listed impairments. (Tr. 18-21). Between

Steps 3 and 4 the ALJ concluded that Gorney retained the following residual

functional capacity (“RFC”):

After careful consideration of the entire record, the undersigned finds

that the claimant has the residual functional capacity to perform

sedentary work as defined in 20 CFR 416.967(a) except the claimant

would require a sit/stand option, with each interval being a maximum

of thirty minutes, but he would not be off task when transferring. He

would require the use of a cane for ambulation. The claimant could

occasionally balance, stoop, crouch, crawl, kneel, and climb, but never

on ladders, ropes, or scaffolds. He should avoid pushing and pulling

with the lower extremities, including for the operation of foot controls.

The claimant could perform frequent fine and gross manipulation for

fingering, feeling, handling, and grasping. He would be limited to

frequent exposure to vibrations and hazards, including moving

machinery and unprotected heights. He should have no exposure to

excessive loud noise, but could be in office setting noise. The claimant

could perform simple, routine tasks, but no complex tasks. He could

have occasional interaction with coworkers, supervisors, and the

public.

(Tr. 21).

In reaching this very restrictive RFC determination which confined Gorney to

a limited range of sedentary work, the ALJ detailed Gorney’s treatment history at

length, noting the numerous instances in which clinical records reflected relatively

benign or unremarkable findings. (Tr. 21-28). The ALJ also evaluated the medical

opinion evidence in light of this clinical record. On this score, the ALJ’s analysis

entailed a careful individualized evaluation of each opinion in light of the overall

medical record. At the outset, the ALJ examined the initial state agency expert

determinations, finding that:

Dr. Ray, the State Agency physical examiner, opined that the claimant

retains the capacity to perform a medium range of exertional work

(Exhibit 1A/6-8). He further opined that the claimant could have

unlimited balancing, and could perform all other postural maneuvers

occasionally (Exhibit 1A/6-8). He also indicated that the claimant

should avoid concentrated exposure to hazards (Exhibit 1A/6-8).

Overall, the undersigned gives this opinion little weight, as it is not

supported by or consistent with the overall evidence of record,

including diagnostic test results for measurable findings on clinical

examinations. This opinion is also not consistent with the findings from

objective physical examinations, including the findings that the

claimant generally retained full strength over his upper and lower

extremities, had normal coordination, and walked with a normal gait at

most appointments throughout the relevant period while using a cane,

but had chronic stasis changes over his bilateral lower extremities with

edema, had some decreased range of motion over his extremities, and

had occasional decreased sensation over his lower extremities and

hands, as described more detail above. The overall evidence of record

supports a finding that the claimant would be limited to less than the

full range of sedentary work, within the above parameters.

(Tr. 28).

The ALJ gave greater credence to the largely uncontested opinion of the state

agency psychologist, Dr. Franks who:

[F]ound a mild limitation with understanding, remembering, or

applying information, a moderate limitation with interacting 28 Case

1:20-cv-02411-MCC Document 16-2 Filed 07/09/21 Page 29 of 61

David Edward Gorney (077-76-2430) Page 15 of 19 See Next Page

with others, a moderate limitation with concentration, persistence, or

maintaining pace, and a mild limitation with adapting or managing

oneself (Exhibit 1A/4). She opined that the claimant would have a

moderate limitation with his ability to carry out detailed instructions,

maintain attention and concentration for extended periods, complete a

normal workday and workweek without interruptions from

psychologically based symptoms, and perform at a consistent pace

without an unreasonable number and length of rest periods (Exhibit

1A/8-10). She further opined that the claimant would have a moderate

limitation with his ability to interact appropriately with the general

public, accept instructions and respond appropriately to criticism from

supervisors, and get along with coworkers or peers without distracting

them or exhibiting behavioral extremes (Exhibit 1A/8-10). The

undersigned gives this opinion great weight, as it is supported by and

consistent with the claimant’s history of mental health treatment, as

well as his consistent complaints of pain and medication side effects.

This opinion is also consistent with the findings from objective mental

status examinations, including the findings that the claimant

occasionally had a depressed mood, was sometimes tearful, and

complained of irritability and difficulty interacting with his parents, but

otherwise had a normal memory and attention, was alert and oriented,

and had intact reality testing and insight, as noted above. The overall

record, including mental health treatment notes in the claimant’s

testimony at the hearing, supports a finding that he would be limited to

performing simple, routine tasks with occasional interaction with

others, as noted above.

(Tr. 28-29).

The ALJ also gave partial weight to the most recent medical opinion of record

in this case, Dr. Skarloff’s February 2019 opinion, explaining that:

Subsequent to the hearing in this matter, at the request of the

undersigned Administrative Law Judge, Dr. Robert Sklaroff completed

interrogatories on February 15, 2019 (Exhibit 10F). After careful

review of the documentary medical evidence of record, Dr. Sklaroff

indicated that the claimant’s impairments do not meet or equal any

listing (Exhibit 10F/9). He opined that the claimant could lift and carry

twenty pounds continuously and fifty pounds occasionally (Exhibit

10F/2). He further opined that the claimant could sit for three hours,

stand for three hours, and walk for three hours at one time, and could

sit for six total hours, stand for six total hours, and walk for six total

hours in an eight-hour workday (Exhibit 10F/3). He did not note any

limitations on the claimant’s use of his hands or feet for activities

(Exhibit 10F/4). He noted that the claimant should never climb ladders

or scaffolds, but could perform all other postural maneuvers

continuously (Exhibit 10F/5). He also indicated that the claimant

should have no exposure to unprotected heights, and would be limited

to moderate, office type of noise levels (Exhibit 10F/6). The

undersigned gives this opinion partial weight. The undersigned agrees

with this opinion to the extent it reflects that the claimant would be

capable of performing less than the full range of sedentary work within

the above parameters. This portion of Dr. Sklaroff’s opinion is

supported by and consistent with the evidence of record, including the

findings that the claimant generally retained full strength over his upper

and lower extremities, had no ataxia on coordination testing, and

generally walked with a normal gait while using a cane at most

appointments. However, the opinion that the claimant could perform

work above this level is given little weight, as this portion of his opinion

is not consistent with the findings that the claimant had observed edema

over his bilateral lower extremities, had some decreased sensation over

his feet and hands, and had limited range of motion due to obesity, as

noted above.

(Tr. 31).

Having found this medical consensus to be persuasive, to the extent that it

supported a finding that Gorney could perform some work, albeit a limited range of

sedentary work, the ALJ considered, but discounted, the opinion of Dr. Bobek,

which suggested that Gorney was incapable of any work activity whatsoever. The

ALJ articulated her rationale for this determination at length in this decision,

explaining that:

Dr. Bobek opined that the claimant could stand and walk for one hour

at one time, and for one total hour in an eight-hour workday (Exhibit

3F/1). He indicated that the claimant could sit for eight hours at one

time, and for eight total hours in an eight-hour workday (Exhibit 3F/1).

He further opined that the claimant cannot perform any driving (Exhibit

3F/2). He noted that the claimant could lift and carry fifty pounds

occasionally and ten pounds frequently (Exhibit 3F/2). He noted that

the claimant could not use his feet for repetitive movements, such as

operating foot controls and pedals (Exhibit 3F/2). Dr. Bobek opined

that the claimant could not perform any postural maneuvers (Exhibit

3F/3). He noted that the claimant could only perform occasional simple

grasping, medium dexterity, and feeling with his bilateral hands, but

could not perform any power grip, fine manipulation, or forearm

rotation (Exhibit 3F/3). He indicated that the claimant could

occasionally reach, push and pull, and have by manual dexterity with

both upper extremities (Exhibit 3F/4). He also noted that the claimant

could use his hands, arms, and shoulders, to push, pull, carry, and lift

up to ten pounds occasionally (Exhibit 3F/4). Overall, he noted that the

claimant would be limited to less than sedentary work, and could not

perform work on either a full-time or part-time basis (Exhibit 3F/5).

The undersigned gives this opinion little weight. First, the issue of

disability is reserved to the Commissioner. In addition, this opinion is

not supported by or consistent with the overall evidence of record,

including diagnostic test results for measurable findings on clinical

examinations. This opinion is also not consistent with the findings from

objective physical examinations, including the findings that the

claimant generally retained full strength over his upper and lower

extremities, had normal coordination, and walked with a normal gait at

most appointments while using a cane, but had chronic stasis changes

over his bilateral lower extremities with edema, had some decreased

range of motion over his extremities, and had occasional decreased

sensation over his lower extremities and hands, as described more detail

above. In addition, the overall record, including Dr. Bobek’s own

examinations of the claimant, do not contain any serious, abnormal

findings that would require such significant upper extremity

limitations. The undersigned overall evidence of record supports a

finding that the claimant would be limited to less than the full range of

sedentary work, within the above parameters.

Dr. Bobek also opined that the claimant would have a moderate

limitation with his ability to remember detailed instructions, exercise

appropriate judgment, abide by occupational rules and regulations,

make social adjustments, and maintain social functioning (Exhibit 4F).

He indicated that the claimant would have a mild limitation with his

ability to respond appropriately to supervisors (Exhibit 4F). He found

marked limitations with the claimant’s ability to function independently

on a job, maintain continuous performance to complete a task, perform

routine tasks on a sustained basis, properly complete sequential tasks,

and perform at a consistent pace without an unreasonable number and

length of rest periods (Exhibit 4F). He also found marked limitations

with the claimant’s ability to work in normal eight hour workday

without psychologically based interruptions or distractions, work

according to plantar schedule, use public transportation, be aware of

normal hazards and make necessary adjustments, and to tolerate

customary work pressures any work setting where production

requirements and demands are placed on him (Exhibit 4F). Dr. Bobek

indicated that the claimant would have an extreme limitation with his

ability to complete a normal workday, concentrate and attend to a task

over an eight-hour period, perform routine tasks on a regular basis, and

perform routine tasks on a productive basis (Exhibit 4F). The

undersigned gives this opinion little weight. First, the undersigned

notes that Dr. Bobek is not a psychiatric physician. In addition, this

opinion is not consistent with or supported by the claimant’s history of

mental health treatment, including the findings that he occasionally

presented with a depressed mood, and complained of some irritability,

but was otherwise alert and oriented, had a normal memory, had normal

attention, was cooperative, and had intact reality testing and insight, as

noted above. The overall evidence supports a finding that the claimant

would be limited to simple, routine tasks with occasional interaction

with others, but does not contain any serious, abnormal mental status

findings that would support the significant degree of limitations noted

by this source.

In September 2015, Dr. Bobek noted that the claimant should only sit

for twenty minutes at one time (Exhibit 1F/75). The undersigned gives

this opinion little weight. First, the undersigned notes that this

limitation was given following a lower extremity ultrasound, and there

is no indication that it was expected or intended to last for twelve

months or more. In addition, this opinion is not consistent with the

overall evidence of record, including physical examination findings or

the claimant’s own testimony that he could sit for one and a half to two

hours before needing to get up and stretch. However, in consideration

of all the evidence, the undersigned finds that the claimant would

require the option to switch positions between sitting and standing

every thirty minutes, as noted above.

(Tr. 29-30).

Having reached these conclusions regarding the medical clinical and opinion

evidence, the ALJ found that, even if he was restricted to a limited range of sedentary

work, Gorney could perform jobs that existed in significant numbers in the national

economy. (Tr. 32-33). Accordingly, the ALJ determined that Gorney had not met

the demanding showing necessary to sustain this claim for benefits and denied this

claim. (Tr. 33).

This appeal followed. (Doc. 1). On appeal, Gorney challenges the adequacy

of the ALJ’s decision, arguing the ALJ erred in the evaluation of the medical opinion

evidence, particularly as it related to the treating source, Dr. Bobek, and further erred

in crafting an RFC for the plaintiff that was not explicitly tied to a specific medical

opinion. This appeal is fully briefed by the parties and is, therefore, ripe for

resolution. As discussed in greater detail below, having considered the arguments of

counsel, carefully reviewed the record, and remaining mindful of the deferential

standard of review which applies here, we conclude that the ALJ’s decision is

supported by substantial evidence, and thus we will affirm the decision of the

Commissioner denying this claim.

III. Discussion

A. Substantial Evidence Review – the Role of this Court

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, this Court’s review is limited to the question of whether the

findings of the final decision-maker are supported by substantial evidence in the

record. See 42 U.S.C. §405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200

(3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012).

Substantial evidence “does not mean a large or considerable amount of evidence, but

rather such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial

evidence is less than a preponderance of the evidence but more than a mere scintilla.

Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not

substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a

conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.

1993). But in an adequately developed factual record, substantial evidence may be

“something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent [the ALJ’s decision]

from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,

383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is

supported by substantial evidence the court must scrutinize the record as a whole.”

Leslie v. Barnhart, 304 F. Supp.2d 623, 627 (M.D. Pa. 2003).

The Supreme Court has underscored for us the limited scope of our review in

this field, noting that:

The phrase “substantial evidence” is a “term of art” used throughout

administrative law to describe how courts are to review agency

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––,

135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-

evidence standard, a court looks to an existing administrative record

and asks whether it contains “sufficien[t] evidence” to support the

agency's factual determinations. Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis

deleted). And whatever the meaning of “substantial” in other contexts,

the threshold for such evidentiary sufficiency is not high. Substantial

evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see,

e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks

omitted). It means—and means only—“such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v.

Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)

(comparing the substantial-evidence standard to the deferential clearly-

erroneous standard).

Biestek, 139 S. Ct. at 1154.

The question before this Court, therefore, is not whether the claimant is

disabled, but rather 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 Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205,

at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s errors of law denote

a lack of substantial evidence”) (alterations omitted); Burton v. Schweiker, 512

F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary’s determination as to the status

of a claim requires the correct application of the law to the facts”); see also Wright

v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on

legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary

review of all legal issues . . . .”).

Several fundamental legal propositions flow from this deferential standard of

review. First, when conducting this review “we are mindful that we must not

substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777 F.3d

607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.

2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather

our task is to simply determine whether substantial evidence supported the ALJ’s

findings. However, we must also ascertain whether the ALJ’s decision meets the

burden of articulation demanded by the courts to enable informed judicial review.

Simply put, “this Court requires the ALJ to set forth the reasons for his decision.”

Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). As the

Court of Appeals has noted on this score:

In Burnett, we held that an ALJ must clearly set forth the reasons for

his decision. 220 F.3d at 119. Conclusory statements . . . are

insufficient. The ALJ must provide a “discussion of the evidence” and

an “explanation of reasoning” for his conclusion sufficient to enable

meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d

501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ

particular “magic” words: “Burnett does not require the ALJ to use

particular language or adhere to a particular format in conducting his

analysis.” Jones, 364 F.3d at 505.

Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

Thus, in practice ours is a twofold task. We must evaluate the substance of the

ALJ’s decision under a deferential standard of review, but we must also give that

decision careful scrutiny to ensure that the rationale for the ALJ’s actions is

sufficiently articulated to permit meaningful judicial review.

This principle applies with particular force to legal challenges, like the claim

made here, based upon alleged inadequacies in the articulation of a claimant’s

mental RFC. In Hess v. Comm’r Soc. Sec., 931 F.3d 198, 212 (3d Cir. 2019), the

United States Court of Appeals recently addressed the standards of articulation that

apply in this setting. In Hess, the court of appeals considered the question of whether

an RFC, which limited a claimant to simple tasks, adequately addressed moderate

limitations on concentration, persistence, and pace. In addressing the plaintiff’s

argument that the language used by the ALJ to describe the claimant’s mental

limitations was legally insufficient, the court of appeals rejected a per se rule which

would require the ALJ to adhere to a particular format in conducting this analysis.

Instead, framing this issue as a question of adequate articulation of the ALJ’s

rationale, the court held that, “as long as the ALJ offers a ‘valid explanation,’ a

‘simple tasks’ limitation is permitted after a finding that a claimant has ‘moderate’

difficulties in ‘concentration, persistence, or pace.’” Hess v. Comm’r Soc. Sec., 931

F.3d 198, 211 (3d Cir. 2019). On this score, the appellate court indicated that an ALJ

offers a valid explanation a mental RFC when the ALJ highlights factors such as

“mental status examinations and reports that revealed that [the claimant] could

function effectively; opinion evidence showing that [the claimant] could do simple

work; and [the claimant]’s activities of daily living, . . . . ” Hess v. Comm’r Soc.

Sec., 931 F.3d 198, 214 (3d Cir. 2019).

In our view, the teachings of the Hess decision are straightforward. In

formulating a mental RFC, the ALJ does not need to rely upon any particular form

of words. Further, the adequacy of the mental RFC is not gauged in the abstract.

Instead, the evaluation of a claimant’s ability to undertake the mental demands of

the workplace will be viewed in the factual context of the case, and a mental RFC is

sufficient if it is supported by a valid explanation grounded in the evidence.

B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ

To receive benefits under the Social Security Act by reason of disability, a

claimant must demonstrate an inability to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can

be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A); 42 U.S.C.

§1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(a). To satisfy this

requirement, a claimant must have a severe physical or mental impairment that

makes it impossible to do his or her previous work or any other substantial gainful

activity that exists in the national economy. 42 U.S.C. §423(d)(2)(A); 42 U.S.C.

§1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits under

Title II of the Social Security Act, a claimant must show that he or she contributed

to the insurance program, is under retirement age, and became disabled prior to the

date on which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).

In making this determination at the administrative level, the ALJ follows a

five-step sequential evaluation process. 20 C.F.R. §§404.1520(a), 416.920(a).

Under this process, the ALJ must sequentially determine: (1) whether the claimant

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

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

impairment; (4) whether the claimant is able to do his or her past relevant work; and

(5) whether the claimant is able to do any other work, considering his or her age,

education, work experience and residual functional capacity (“RFC”). 20 C.F.R.

§§404.1520(a)(4), 416.920(a)(4).

Between Steps 3 and 4, the ALJ must also assess a claimant’s residual

functional capacity (RFC). RFC is defined as “that which an individual is still able

to do despite the limitations caused by his or her impairment(s).” Burnett, 220 F.3d

at 121 (citations omitted); see also 20 C.F.R. §§404.1520(e), 404.1545(a)(1),

416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the

claimant’s medically determinable impairments, including any non-severe

impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R.

§§404.1545(a)(2), 416.945(a)(2).

Once the ALJ has made this determination, our review of the ALJ's

assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be

set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113,

129 (3d Cir. 2002); see also Rathbun v. Berryhill, No. 3:17-CV-00301, 2018 WL

1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and recommendation adopted, No.

3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27, 2018); Metzger v. Berryhill,

No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and

recommendation adopted sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL

1479426 (M.D. Pa. Apr. 21, 2017)..

At Steps 1 through 4, the claimant bears the initial burden of demonstrating

the existence of a medically determinable impairment that prevents him or her in

engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once this

burden has been met by the claimant, it shifts to the Commissioner at Step 5 to show

that jobs exist in significant number in the national economy that the claimant could

perform that are consistent with the claimant’s age, education, work experience and

RFC. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d at 1064.

There is an undeniable medical aspect to an RFC determination, since that

determination entails an assessment of what work the claimant can do given the

physical limitations that the claimant experiences. Yet, when considering the role

and necessity of medical opinion evidence in making this determination, courts have

followed several different paths. Some courts emphasize the importance of medical

opinion support for an RFC determination and state that “[r]arely can a decision be

made regarding a claimant's residual functional capacity without an assessment from

a physician regarding the functional abilities of the claimant.” Biller v. Acting

Comm’r of Soc. Sec., 962 F.Supp.2d 761, 778–79 (W.D. Pa. 2013) (quoting

Gormont v. Astrue, Civ. No. 11–2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4,

2013)). In other instances, it has been held that “[t]here is no legal requirement that

a physician have made the particular findings that an ALJ adopts in the course of

determining an RFC.” Titterington v. Barnhart, 174 F. App’x 6, 11 (3d Cir. 2006).

Further, courts have held in cases where there is no evidence of any credible medical

opinion supporting a claimant’s allegations of disability that “the proposition that an

ALJ must always base his RFC on a medical opinion from a physician is misguided.”

Cummings v. Colvin, 129 F.Supp.3d 209, 214–15 (W.D. Pa. 2015).

These seemingly discordant legal propositions can be reconciled by

evaluation of the factual context of these decisions. Those cases which emphasize

the importance of medical opinion support for an RFC assessment typically arise in

the factual setting, like that presented here, where well-supported medical sources

have opined regarding limitations which would support a disability claim, but an

ALJ has rejected the medical opinion which supported a disability determination

based upon a lay assessment of other evidence. Biller, 962 F.Supp.2d at 778–79. In

this setting, these cases simply restate the commonplace idea that medical opinions

are entitled to careful consideration when making a disability determination,

particularly when those opinions support a finding of disability. In contrast, when

no medical opinion supports a disability finding or when an ALJ is relying upon

other evidence, such as contrasting clinical or opinion evidence or testimony

regarding the claimant’s activities of daily living, to fashion an RFC courts have

adopted a more pragmatic view and have sustained the ALJ’s exercise of

independent judgment based upon all of the facts and evidence. See Titterington,

174 F. App'x 6; Cummings, 129 F.Supp.3d at 214–15. In either event, once the ALJ

has made this determination, our review of the ALJ's assessment of the plaintiff's

RFC is deferential, and that RFC assessment will not be set aside if it is supported

by substantial evidence. Burns, 312 F.3d 113; see also Rathbun, 2018 WL 1514383,

at *6; Metzger, 2017 WL 1483328, at *5.

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significant among these legal benchmarks is a requirement that the

ALJ adequately explain the legal and factual basis for this disability determination.

Thus, in order to facilitate review of the decision under the substantial evidence

standard, the ALJ's decision must be accompanied by "a clear and satisfactory

explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d

Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate

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

rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in

his decision which evidence he has rejected and which he is relying on as the basis

for his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir.

1999).

C. Standard of Review: Analysis of Medical Opinion Evidence.

The Commissioner’s regulations which were in effect at the time of these

administrative proceedings also set standards for the evaluation of medical evidence,

and define medical opinions as “statements from physicians and psychologists or

other acceptable medical sources that reflect judgments about the nature and severity

of [a claimant’s] impairment(s), including [a claimant’s] symptoms, diagnosis and

prognosis, what [a claimant] can still do despite impairments(s), and [a claimant’s]

physical or mental restrictions.” 20 C.F.R. §404.1527(a)(2). Regardless of its source,

the ALJ is required to evaluate every medical opinion received. 20 C.F.R.

§404.1527(c).

In deciding what weight to afford competing medical opinions and evidence,

the ALJ is guided by factors outlined in 20 C.F.R. §404.1527(c). “The regulations

provide progressively more rigorous tests for weighing opinions as the ties between

the source of the opinion and the individual become weaker.” SSR 96-6p, 1996 WL

374180 at *2. Treating sources have the closest ties to the claimant, and therefore

their opinions generally were entitled to more weight. See 20 C.F.R.

§404.1527(c)(2)(“Generally, we give more weight to opinions from your treating

sources...”); 20 C.F.R. §404.1502 (defining treating source). Under some

circumstances, the medical opinion of a treating source may even be entitled to

controlling weight. 20 C.F.R. §§04.1527(c)(2); see also SSR 96-2p, 1996 WL

374188 (explaining that controlling weight may be given to a treating source’s

medical opinion only where it is well-supported by medically acceptable clinical and

laboratory diagnostic techniques, and it is not inconsistent with the other substantial

evidence in the case record).

Where no medical source opinion is entitled to controlling weight, the

Commissioner’s regulations direct the ALJ to consider the following factors, where

applicable, in deciding the weight given to any non-controlling medical opinions:

length of the treatment relationship and frequency of examination; nature and extent

of the treatment relationship; the extent to which the source presented relevant

evidence to support his or her medical opinion, and the extent to which the basis for

the source’s conclusions were explained; the extent to which the source’s opinion is

consistent with the record as a whole; whether the source is a specialist; and, any

other factors brought to the ALJ’s attention. 20 C.F.R. §404.1527(c).

In conducting this analysis the ALJ also must consider, and may follow, the

opinions of non-treating sources like state agency experts or outside consultants. At

the initial level of administrative review, state agency medical and psychological

consultants may act as adjudicators. See SSR 96-5p, 1996 WL 374183 at *4. As

such, they do not express opinions; they make findings of fact that become part of

the determination. Id. At the ALJ and Appeals Council levels of the administrative

review process, however, findings by non-examining state agency medical and

psychological consultants should be evaluated as medical opinion evidence. 20

C.F.R. § 404.1527(e) (effective Aug. 24, 2012, through Mar. 26, 2017). As such,

ALJs must consider these opinions as expert opinion evidence by non-examining

physicians and must address these opinions in their decisions. SSR 96-5p, 1996 WL

374183 at *6. Opinions by state agency consultants can be given weight “only

insofar as they are supported by evidence in the case record.” SSR 96-6p, 1996 WL

374180 at *2. In appropriate circumstances, opinions from non-examining state

agency medical consultants may be entitled to greater weight than

the opinions of treating or examining sources. Id. at *3. See Mack v. Berryhill, No.

3:16-CV-02260, 2018 WL 1123705, at *6 (M.D. Pa. Mar. 1, 2018).

Oftentimes, as in this case, an ALJ must evaluate medical opinions and

records tendered by both treating and non-treating sources. Judicial review of this

aspect of ALJ decision-making is guided by several settled legal tenets. First, when

presented with a disputed factual record, it is well-established that “[t]he ALJ—

not treating or examining physicians or State agency consultants—must make the

ultimate disability and RFC determinations.” Chandler v. Comm'r of Soc. Sec., 667

F.3d 356, 361 (3d Cir. 2011). Thus, “[w]here ... the opinion of a treating physician

conflicts with that of a non-treating, non-examining physician, the ALJ may choose

whom to credit but ‘cannot reject evidence for no reason or for the wrong reason.’

” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Plummer, 186 F.3d

at 429). Therefore, provided that the decision is accompanied by an adequate,

articulated rationale, it is the province and the duty of the ALJ to choose which

medical opinions and evidence deserve greater weight.

Further, when evaluating a treating source opinion, an ALJ may not

unilaterally reject that opinion, and substitute the judge’s own lay judgment for that

medical opinion. However, the ALJ may discount such an opinion when it conflicts

with other objective tests or examination results. Johnson v. Comm'r of Soc. Sec.,

529 F.3d 198, 202–03 (3d Cir. 2008). Likewise, an ALJ may conclude that

discrepancies between the treating source’s medical opinion, and the doctor’s actual

treatment notes, justifies giving a treating source opinion little weight in a disability

analysis. Torres v. Barnhart, 139 F. App'x 411, 415 (3d Cir. 2005). Finally, “an

opinion from a treating source about what a claimant can still do which would seem

to be well-supported by the objective findings would not be entitled to controlling

weight if there was other substantial evidence that the claimant engaged in activities

that were inconsistent with the opinion.” Tilton v. Colvin, 184 F. Supp. 3d 135, 145

(M.D. Pa. 2016).

Finally, in making this assessment of medical evidence:

An ALJ is [also] entitled generally to credit parts of an opinion without

crediting the entire opinion. See Thackara v. Colvin, No. 1:14–CV–

00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23,

2015); Turner v. Colvin, 964 F.Supp.2d 21, 29 (D.D.C. 2013) (agreeing

that “SSR 96–2p does not prohibit the ALJ from crediting some parts

of a treating source's opinion and rejecting other portions”); Connors

v. Astrue, No. 10–CV–197–PB, 2011 WL 2359055, at *9 (D.N.H. June

10, 2011). It follows that an ALJ can give partial credit to all

medical opinions and can formulate an RFC based on different parts

from the different medical opinions. See e.g., Thackara v. Colvin, No.

1:14–CV–00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23,

2015).

Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016).

It is against these legal guideposts that we assess the ALJ’s decision in the

instant case.

D. The Decision of the ALJ Will Be Affirmed.

In this setting, we are mindful that we are not free to substitute our

independent assessment of the evidence for the ALJ’s determinations. Rather, we

must simply ascertain whether the ALJ’s decision is supported by substantial

evidence, a quantum of proof which is less than a preponderance of the evidence but

more than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401 (1971), and

“does not mean a large or considerable amount of evidence,” Pierce v. Underwood,

487 U.S. 552, 565 (1988), but rather “means—and means only—‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’ ”

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Judged against these deferential

standards of review, we are constrained to find that substantial evidence supported

the ALJ’s decision that Gorney was not entirely disabled.

At the outset, we find that the ALJ did not err in concluding, based upon the

greater weight of the medical evidence, that Gorney had the ability to perform some

work. In this regard, Gorney faults the ALJ for crafting an RFC which was did not

adopt Dr. Bobek’s extreme limitations and was not directly based upon a specific

medical opinion, suggesting that this RFC represented some sort of improper lay

opinion by the ALJ.

We disagree. In our view this argument misconstrues the role of the ALJ and

medical experts in the disability determination process. It is axiomatic that:

The ALJ—not treating or examining physicians or State agency

consultants—must make the ultimate disability

and RFC determinations. See 20 C.F.R. §§ 404.1527(e)(1),

404.1546(c). Although treating and examining physician opinions

often deserve more weight than the opinions of doctors who review

records, see, e.g., 20 C.F.R. § 404.1527(d)(1)-(2), “[t]he law is clear

... that the opinion of a treating physician does not bind the ALJ on the

issue of functional capacity,” Brown v. Astrue, 649 F.3d 193, 197 n.

2 (3d Cir.2011). State agent opinions merit significant consideration

as well. See SSR 96–6p (“Because State agency medical and

psychological consultants ... are experts in the Social Security

disability programs, ... 20 C.F.R. §§ 404.1527(f) and 416.927(f)

require [ALJs] ... to consider their findings of fact about the nature and

severity of an individual's impairment(s)....”).

Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).

Thus, while a treating source’s opinion is entitled to careful consideration by

the ALJ, that opinion does not control the disability determination. Moreover: