Vizcarrondo v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KARA DANELL VIZCARRONDO, o/b/o

J.J.V.,

CIVIL ACTION NO. 3:20-CV-02367

Plaintiff,

v. (MEHALCHICK, M.J.)

KILOLO KIJAKAZI,1

Defendant.

MEMORANDUM

Plaintiff Tabitha A. Vizcarrondo (“Vizcarrondo”) brings this action on behalf of her

minor son (“J.J.V.”) under section 1631(c) of the Social Security Act, 42 U.S.C. § 1383(c) for

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

“Commissioner”) denying her application for Childs’ Supplemental Security Income (“SSI”)

on behalf of J.J.V. under Title XVI of the Social Security Act. (Doc. 1). For the following

reasons, the Commissioner’s decision will be AFFIRMED.

I. BACKGROUND AND PROCEDURAL HISTORY

On February 19, 2019, Vizcarrondo filed an application for benefits under Title XVI

of the Social Security Act on behalf of J.J.V. for SSI benefits alleging an onset date of March

1, 2019. (Doc. 12-2, at 13). Vizcarrondo’s application for benefits was initially denied on May

1 The Court has amended the caption to replace, as the named defendant, Social

Security Commissioner Andrew M. Saul, with his successor, Social Security Commissioner

Kilolo Kijakazi. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer

who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the

action is pending. The officer’s successor is automatically substituted as a party.”).

7, 2019, and Vizcarrondo filed a timely request for a hearing, which Administrative Law

Richard E. Guida (“ALJ”) held on March 12, 2020. (Doc. 12-2, at 13). In a May 27, 2020,

written decision, the ALJ determined that J.J.V. is not disabled and therefore not entitled to

benefits or income under Title XVI. (Doc. 12-2, at 19). On October 21, 2020, the Appeals

Council subsequently denied Vizcarrondo’s request for review. (Doc. 12-2, at 2).

On December 17, 2020, Vizcarrondo commenced the instant action. (Doc. 1). The

Commissioner responded on June 23, 2021, providing the requisite transcripts from J.J.V.’s

disability proceedings. (Doc. 11; Doc. 12). The parties then filed their respective briefs, with

Vizcarrondo raising two principal bases for reversal or remand. (Doc. 19; Doc. 22). This

matter is now ripe for decision.

II. STANDARD OF REVIEW

Resolution of the instant social security appeal involves an informed consideration of

the respective roles of two adjudicators–the ALJ and the Court. At the outset, it is the

responsibility of the ALJ in the first instance to determine whether a claimant has met the

statutory prerequisites for entitlement to benefits. A claimant under the age of 18 (“child”)

shall be considered disabled under Title XVI of the Social Security Act if she “has a medically

determinable physical or mental impairment, which results in marked and severe functional

limitations, and which can be expected to result in death or which has lasted for a continuous

period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(I); 20 C.F.R. §416.906.

Notwithstanding the above, no child who engages in substantial gainful activity, as defined

by the Social Security regulations, may be found disabled. 42 U.S.C. § 1382c(a)(3)(C)(ii); 20

C.F.R. §416.906.

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The ALJ employs a three-step evaluation process to determine whether a child is

eligible for SSI payments because of disability. As part of this analysis, the ALJ must

sequentially determine: (1) whether the child is engaged in substantial gainful activity; (2)

whether the child has a medically determinable, severe impairment; (3) whether the child’s

impairment or combination of impairments meets, medically equals, or functionally equals

an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.924.

If the ALJ finds that the child is not disabled at any point in the sequence, review does not

proceed further. 20 C.F.R. § 416.924.

In determining functional equivalence, the ALJ evaluates the following six domains

of functioning: (1) acquiring and using information; (2) attending to and completing tasks; (3)

interacting and relating with others; (4) moving about and manipulating objects; (5) ability to

care for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). An

impairment is functionally equal to a listed impairment when it results in “marked”

limitations in two domains of functioning or an “extreme” limitation in one domain. 20

C.F.R. § 416.926a(a). A marked limitation is more than moderate but less than extreme. 20

C.F.R. § 416.926a(e)(2)(ii). An impairment that only meets some of the criteria of a listed

impairment, “no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530

(1990); see also Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992).

When reviewing the denial of disability benefits, the Court’s review is limited to

determining whether those findings are supported by substantial evidence in the

administrative record. See 42 U.S.C. 405(g) (sentence five); Johnson v. Comm’r of Soc. Sec.,

529 F.3d 198, 200 (3d Cir. 2008); Ficc§a 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

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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 question before the Court, therefore, is not whether J.J.V. is disabled,

but whether the Commissioner’s finding that she is not disabled is supported by substantial

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

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In reviewing the ALJ's decision, the Court is not permitted to weigh the evidence or

substitute its own conclusions for those reached by the ALJ. See Burns v. Barnhart, 312 F.3d

113, 118 (3d Cir. 2002). Rather, the court reviews the ALJ's findings to determine whether

they were supported by substantial evidence. See 42 U.S.C. § 405(g); Rutherford v. Barnhart,

399 F.3d 546, 552 (3d Cir. 2005). Substantial evidence is evidence that a “reasonable mind

might accept as adequate to support a conclusion.” Rutherford, 399 F.3d at 552 (internal

quotations omitted). “It is ‘more than a mere scintilla but may be somewhat less than a

preponderance of the evidence.’” Rutherford, 399 F.3d at 552 (quoting Ginsburg v. Richardson,

436 F.2d 1146, 1148 (3d Cir. 1971)). If the decision of the ALJ is supported by substantial

evidence, the Court may not set it aside “even if [the Court] would have decided the factual

inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

For effective judicial review to take place, the court “need[s] from the ALJ not only an

expression of the evidence he considered which supports the result, but also some indication

of the evidence which was rejected. In the absence of such an indication, the reviewing court

cannot tell if significant probative evidence was not credited or simply ignored.” Cotter v.

Harris, 642 F.2d 700, 705 (3d Cir. 1981).

III. THE ALJ’S DECISION

The ALJ proceeded through the three-step sequential evaluation process to determine

whether J.J.V., as an individual under the age of eighteen (18), is disabled. 20 C.F.R. §

416.924(a); (Doc. 12-2, at 14-19). At step one, the ALJ concluded that J.J.V. has not been

engaged in any substantial gainful activity since his application date of February 19, 2019.

(Doc. 12-2, at 14). The ALJ then proceeded to step two and determined that J.J.V. has the

following severe impairment: lymphoma. (Doc. 12-2, at 14). Next, at step three, the ALJ

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determined that J.J.V. does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20 C.F.R Part 404,

Subpart P, Appendix 1. (Doc. 12-2, at 14). Specifically, the ALJ considered Listings 113.05 -

Lymphoma. (Doc. 12-2, at 14).

In determining step three, the ALJ addressed the six domains of functioning and

concluded that J.J.V. does not have an impairment or combination of impairments that

functionally equals the severity of one of the listed impairments. (Doc. 12-2, at 14-18). The

ALJ concluded that J.J.V. has: (1) no limitation in acquiring and using information; (2) no

limitation in attending and completing tasks; (3) no limitation in interacting and relating with

others; (4) no limitation in moving about and manipulating objects; (5) no limitation in the

ability to care for himself; and (6) a marked limitation in health and physical well-being. (Doc.

12-2, at 15). Based on this analysis, the ALJ concluded that J.J.V. has not been disabled, as

defined by the Social Security Act, since February 19, 2019, the date the application was filed.

(Doc. 12-2, at 19).

IV. DISCUSSION

Vizcarrondo raises two issues on appeal. (Doc. 19, at 1-2). First, she contends that the

ALJ “erred and abused his discretion by failing to properly consider [J.J.V.’s] limitations

under the Functional Domains, when considering [his] . . . severe impairment” of Hodgkin’s

Lymphoma. (Doc. 19, at 1). Additionally, Vizcarrondo asserts that the ALJ erred in relying

on the findings of the State Agency Consultants as opposed to the findings in the Childhood

Disability Evaluation Form from J.J.V.’s treating pediatric oncologist, Dr. Jennifer Kovatch.

(Doc. 19, at 1-2). The Commissioner argues that substantial evidence supports the ALJ’s

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decision. (Doc. 22, at 1). The Court concludes that substantial evidence supports the ALJ’s

decision.

A. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S DECISION THAT J.J.V.’S SEVERE

IMPAIRMENTS DO NOT FUNCTIONALLY EQUAL A LISTING.

First, Vizcarrondo argues that “[t]he ALJ erred and abused his discretion by failing to

properly consider [J.J.V.’s] limitations under the Functional Domains, when considering [his]

severe impairment” of Hodgkin’s Lymphoma. (Doc. 19, at 1). Vizcarrondo contends the

limitations caused by J.J.V.’s severe impairments are consistent with an extreme limitation in

the domain of (1) health and physical well-being and at least marked limitations in the

domains of (2) moving about and manipulating objects and (3) caring for oneself. (Doc. 19,

at 16). To the extent Vizcarrondo asks the Court to re-weigh the record evidence or make new

factual findings, the Court may not invade the ALJ’s province as a finder of fact in disability

proceedings, for “our inquiry is not whether an alternate conclusion would have been

reached, but whether substantial evidence supported the ALJ’s decision.” See Daub v. Colvin,

No. 3:15-CV-1066, 2015 WL 8013037, at *9 (M.D. Pa Dec. 7, 2015). Substantial evidence

supports the ALJ’s findings that J.J.V. has no limitation in the domains of (1) caring for

oneself and (2) moving about and manipulating objects and a marked limitation in the domain

of (3) health and physical well-being. (Doc. 12-2, at 5).

Vizcarrondo argues that J.J.V.’s medical records, school records, and her testimony

demonstrate marked and extreme limitations in the aforementioned domains. (Doc. 19, at 15-

17). Further, Vizcarrondo claims that the ALJ erred in failing to consider J.J.V.’s ongoing

weakness and the various impact his Hodgkin’s Lymphoma had on his ability to function

along with the ailments J.J.V. suffered from prior to his Lymphoma diagnosis, treatment, and

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side effects. (Doc. 19, at 17). Additionally, Vizcarrondo claims that the ALJ erred by failing

to consider whether a partially favorable decision for a closed period of time should have been

awarded due to J.J.V.’s impairments.2 (Doc. 19, at 18).

The ALJ specifically addressed Vizcarrondo’s testimony and considered J.J.V.’s

medical records, school records, symptoms, treatment, and side effects when assessing J.J.V.’s

functional domains. (Doc. 12-2, at 16-17).

2 Vizcarrondo argues that “[t]he ALJ erred by failing to properly consider whether this

claim should be awarded as a Partially Favorable Decision, for a closed period of time, due

to the limitations from [J.J.V.’s] treatment for his Hodgkin’s Lymphoma.” (Doc. 19, at 18).

Specifically, Vizcarrondo contends that J.J.V. had “significant limitations for a period lasting

at least one year” from his diagnosis through his recovery. (Doc. 19, at 18). The

Commissioner argues that a closed period of disability was unwarranted because, within four

months of filing the disability application, J.J.V. had entered remission for his lymphoma.

(Doc. 22, at 16-17).

The ALJ considered evidence from J.J.V.’s initial diagnosis on December 5, 2018,

through the date of the decision on March 27, 2020. (Doc. 12-2, at 16, 19). The ALJ noted

J.J.V.’s diagnosis of Hodgkin lymphoma, the biopsy that was performed on December 5,

2018, and the PET CT scan that was performed in January 2019. (Doc. 12-2, at 16). The ALJ

also discussed J.J.V.’s continued recovery including his need to undergo interval evaluations

for five years. (Doc. 12-2, at 17). However, the ALJ also noted the progress J.J.V. has made

during his recovery, that his treating oncologist did not indicate a need for any significant

treatment during the time of her opinion, and that he is now in remission. (Doc. 12-2, at 17).

The ALJ found that J.J.V. “has not been disabled . . . since February 19, 2019” and included

medical evidence from the date of J.J.V.’s initial diagnosis through his most recent CT scan

in August 2019 indicating complete remission. (Doc. 12-2, at 16, 19); see infra. In making this

determination, the ALJ considered the entire record, not just evidence from J.J.V.’s period of

improvement. See C.T. v. Comm'r of Soc. Sec., No. CV 20-03674 (RBK), 2021 WL 4398663, at

*6 (D.N.J. Sept. 27, 2021). Thus, the ALJ cited to substantial evidence when assessing J.J.V.’s

impairments from his diagnosis through his recovery.

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1. Substantial evidence supports the ALJ’s finding that J.J.V. has a marked

limitation in the functional domain of health and physical well-being.

Vizcarrondo argues that the ALJ erred in finding that J.J.V. suffers from a marked

limitation in his health and physical well-being. (Doc. 19, at 16). The regulations on the

domain of health and physical well-being explain the evaluation criteria, in pertinent part, as

follows: “In this domain, we consider the cumulative physical effects of physical or mental

impairments and their associated treatments or therapies on your functioning that we did not

consider in [the domain of moving about and manipulating objects].” 20 C.F.R. §§

416.926a(l). “Unlike the other five domains of functional equivalence, which address a child's

abilities, this domain does not address typical development and functioning. The ‘Health and

Physical Well-Being’ domain addresses how recurrent illness, the side effects of medication,

and the need for ongoing treatment affect the child's health and sense of physical well-being.”

Cynthia W. on behalf of T.C. v. Kijakazi, No. 2:19-CV-15806, 2021 WL 4520380, at *9 (D.N.J.

Oct. 4, 2021) (quoting 20 CFR 416.929a(l); SSR 09-8p).

Vizcarrondo argues that J.J.V.’s identified severe impairments of Lymphoma warrant

a finding of an extreme limitation in the functional domain of health and physical well-being.

(Doc. 19, at 16). However, the ALJ addressed J.J.V.’s Lymphoma through substantial

evidence from the record in deciding that he has a marked limitation on his health and

physical well-being. (Doc. 12-2, at 16-17).

The ALJ considered Vizcarrondo's testimony and childhood disability form, the

opinions of Dr. Kovatch and the State Agency medical consultants, and the objective medical

evidence. (Doc. 12-2, at 16-18).

The ALJ found that

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The record reveals [J.J.V.], who was age 12 at the time of the hearing, has been

diagnosed with nodular lymphocyte-predominant Hodgkin lymphoma, Stage

3, for which he underwent an excisional biopsy on December 5, 2018 that

showed a nodular lymphocyte predominant Hodgkin lymphoma and a staging

PET CT scan on January 2019 that confirmed the biopsy impression (Exhibits

4F; 14F; 15F; 22F). Subsequently, [J.J.V.] underwent four (4) cycles of

chemotherapy treatment beginning February 7, 2019 through April 14, 2019

(Exhibits 9F-13F; 19F; 22F; Hearing Testimony). [Vizcarrondo] testified

[J.J.V.] had problems handling conditions resulting from chemotherapy

treatment, including hair loss, memory loss, and pain in the feet and hands.

The April 2019 oncology evaluation reports indicated [J.J.V.] experienced post-

chemotherapy induced nausea and vomiting (Exhibit 13F). The record reveals

[J.J.V.] also suffered from a compromised immune system due to

chemotherapy treatment, resulting in viral respiratory issues, for which he was

prescribed steroids (Exhibits 9F-13F; 14F; Hearing Testimony). However, the

April 2019 oncology records further indicated [J.J.V.] reported to be otherwise

doing well, with the return of normal appetite and activity within two (2) days

of treatment (Exhibit 13F/15). Further, while [Vizcarrondo] testified [J.J.V.]

had also problems with fatigue and anemia associated with chemotherapy

treatment, she further indicated that these symptoms improved after

chemotherapy treatment ended. The medical records reveal [J.J.V.’s] end of

therapy PET CT scan was performed on May 1, 2019 and the results showed

complete remission (Exhibit 19F). [J.J.V.] had his mediport removed in June

2019 (Exhibit 19F). The most recent CT scan in August 2019 showed no

indication of recurrent lymphadenopathy (Exhibit 19F/4; 9; 23- 24). While

[Vizcarrondo] testified [J.J.V.’s] nodules have grown, she further testified that

a more recent biopsy has not been performed as they have not grown large

enough (Hearing Testimony). On the childhood disability form dated March

10, 2020, [J.J.V.’s] oncologist noted that [J.J.V.] will continue to undergo

interval evaluation on a scheduled basis for five (5) years, but she did not

indicate any need for additional significant treatment at that time (Exhibits

22F).

(Doc. 12-2, at 16-17).

First, the ALJ considered J.J.V.’s treatment for lymphoma including four cycles of

chemotherapy treatment, and the side effects from which he suffered. (Doc. 12-2, at 16). The

ALJ found that J.J.V.’s symptoms were supported by objective medical evidence and

Vizcarrondo's testimony. (Doc. 12-2, at 16; Doc. 12-9, at 77-164; Doc. 12-10, at 3-34; Doc.

12-19, at 48-69; Doc. 12-20, at 82-87). Specifically, the ALJ considered Vizcarrondo’s

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testimony that J.J.V. “had problems handling conditions resulting from chemotherapy

treatment, including hair loss, memory loss, and pain in the feet and hands” and an oncology

evaluation report that demonstrated J.J.V.’s “post-chemotherapy induced nausea and

vomiting” along with a compromised immune system which resulted in respiratory issues.

(Doc. 12-2, at 16, 32; Doc. 12-10, at 20; Doc. 12-11, at 56). However, the ALJ also noted that

while undergoing chemotherapy treatment, other than the above-mentioned side effects,

J.J.V. was doing well with a return of a normal appetite and actives within two days of

treatment. (Doc. 12-2, at 16; Doc. 12-15, at 57). The ALJ also considered J.J.V.’s symptoms

after he had completed his chemotherapy treatment. (Doc. 12-2, at 16). The ALJ noted

Vizcarrondo’s testimony that J.J.V.’s fatigue and anemia improved once his chemotherapy

treatment ended. (Doc. 12-2, at 16, 36). Further, the ALJ mentioned that J.J.V.’s medical

records demonstrate complete remission on May 1, 2019, and in his most recent CT scan in

August 2019. (Doc. 12-2, at 16; Doc. 12-19, at 10, 54). The ALJ noted that J.J.V. has had his

mediport removed and that his treating oncologist, Dr. Kovatch, did not indicate a need for

significant treatment at the time although J.J.V. will need to undergo evaluations over the

next five years. (Doc. 12-2, at 16-17; Doc. 12-19, at 54; Doc. 12-20, at 87).

The ALJ also considered the opinions of Dr. Popat and Dr. Draper when discussing

J.J.V.’s limitations in his health and physical well-being. (Doc. 12-2, at 17-18). First, the ALJ

found Dr. Popat’s opinion that J.J.V. suffered from a marked limitation in health and physical

well-being persuasive. (Doc. 12-2, at 17; Doc. 12-3, at 6). Specifically, the ALJ compared Dr.

Popat’s opinion with the other record evidence and noted that J.J.V. is in remission, that he

did not have any pain associated with his biopsy scar, and no issues with illness, constipation,

nausea, weight loss, or fevers at that time, and the oncology progress notes indicate J.J.V.’s

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improvement of symptoms related to chemotherapy treatment after the treatment ended.

(Doc. 12-2, at 17). Next, the ALJ considered the opinion of Dr. Draper and found his opinion

that J.J.V. has a less than marked limitation in health and physical well-being unpersuasive

noting that J.J.V.’s history of treatment for lymphoma, symptoms related to chemotherapy

treatment, and continued need for routine evaluations demonstrated a more extensive

limitation. (Doc. 12-2, at 18; Doc. 12-3, at 17).

Thus, the ALJ considered substantial evidence regarding J.J.V.’s limitations when he

determined that J.J.V. has a marked limitation in the functional domain of health and physical

well-being. (Doc. 12-2, at 16); see Morrison ex rel. Morrison v. Comm. of Soc. Sec., 268 F. App’x

186, 190 (3d Cir. 2008) (finding that the ALJ’s opinion cited to substantial evidence in his

finding regarding the domain of health and physical well-being when the ALJ referenced the

child’s severe impairments, gave substantial weight to a medical opinion, and acknowledged

various side effects of his impairments along with the mitigation techniques employed by the

claimant); see also Bailey ex rel. J.L.M. v. Comm. Of Soc. Sec., No. 12-cv-13159, 2013 WL

2295734, at *10 (E.D. Mich. May 24, 2013) (affirming ALJ’s opinion that claimant had less

than marked limitation in the domain of health and physical well-being when considering his

lymphoma when his symptoms had improved, he had completed chemotherapy treatment,

and was in remission).

2. Substantial evidence supports the ALJ’s finding that J.J.V. has no limitation in

the functional domain of moving about and manipulating objects.

Vizcarrondo argues that the ALJ erred in finding that J.J.V. suffers from no limitation

in moving about and manipulating objects. (Doc. 19, at 16). The regulations outline the

evaluation criteria for the domain of moving about and manipulating objects as follows:

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In this domain, we consider how you move your body from one place to

another and how you move and manipulate things. These are called gross and

fine motor skills.

. . .

As a school-age child, your developing gross motor skills should let you move

at an efficient pace about your school, home, and neighborhood. Your

increasing strength and coordination should expand your ability to enjoy a

variety of physical activities, such as running and jumping, and throwing,

kicking, catching and hitting balls in informal play or organized sports. Your

developing fine motor skills should enable you to do things like use many

kitchen and household tools independently, use scissors, and write.

20 C.F.R. §§ 416.926a(j); (j)(2)(iv).

Vizcarrondo argues that J.J.V.’s identified severe impairment of Lymphoma warrants

a finding of marked limitations in the functional domain of moving about and manipulating

objects. (Doc. 19, at 16). However, the ALJ addressed J.J.V.’s Lymphoma through

substantial evidence from the record in deciding that he has no limitation in his ability to

move about and manipulate objects. (Doc. 12-2, at 16-17). The ALJ considered Vizcarrondo's

testimony and J.J.V.’s ability to engage in activities. (Doc. 12-2, at 17).

The ALJ considered Vizcarrondo’s testimony that J.J.V. can walk, run, throw a ball,

ride a bike, jump rope, use roller skates or roller blades, swim, use scissors, work video game

controls, and dress/undress dolls or action figures but that he is not able “to be too active

because of his” lymphoma. (Doc. 12-2, at 16; Doc. 12-6, at 9). Further, the ALJ noted that

J.J.V. was at the usual baseline for indoor activities and was able to attend vacations. (Doc.

12-2, at 17; Doc. 12-19, at 48).

The ALJ also considered the opinions of Dr. Popat and Dr. Draper when discussing

J.J.V.’s limitations in his functional domain of moving about and manipulating objects and

found them both persuasive. (Doc. 12-2, at 17-18; Doc. 12-3, at 6, 17). The ALJ stated that

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the opinions of Dr. Popat and Dr. Draper were consistent with J.J.V.’s ability to go on

vacation and Vizcarrondo’s testimony regarding J.J.V.’s motor functions and physical

activity. (Doc. 12-2, at 17-18).

Finally, the ALJ considered the opinion of Dr. Kovatch that J.J.V. had marked

limitations in the functional domain of moving about and manipulating objects and found

that it was inconsistent with the record. (Doc. 12-2, at 18). Dr. Kovatch stated that J.J.V. was

“unable to ambulate at will due to the severe side effects of chemotherapy, fatigue, and

anemia.” (Doc. 12-20, at 85). However, the ALJ noted that Dr. Kovatch opinion was limited

to January 2, 2019, to April 1, 2019, and that J.J.V. had completed chemotherapy on April

14, 2019, had his mediport removed on June 14, 2019, and was in complete remission on

August 7, 2019. (Doc. 12-2, at 18; Doc. 12-19, at 54). Further, the ALJ stated that J.J.V. was

able to take trips and spent a week at Disney. (Doc. 12-2, at 18). Thus, the ALJ explained

why he did not find Dr. Kovatch’s opinion persuasive as her opinion was based on side effects

from chemotherapy and J.J.V. has completed his chemotherapy treatments and is now in

remission. (Doc. 12-2, at 18).

The ALJ also adequately explained his decision because he gave “not only an

expression of the evidence he considered which supports the result, but also some indication

of the evidence which was rejected.” Cotter, 642 F.2d at 705. Thus, the ALJ considered

substantial evidence regarding J.J.V.’s limitations when he determined that J.J.V. has no

limitations in the functional domain of moving about and manipulating objects. (Doc. 12-2,

at 17).

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3. Substantial evidence supports the ALJ’s finding that J.J.V. has no limitation in

the functional domain of caring for himself.

Vizcarrondo argues that the ALJ erred in finding that J.J.V. has no limitation in the

ability to care for himself. (Doc. 19, at 16). The regulations on the domain of caring for

yourself explain the evaluation criteria, in pertinent part, as follows:

In this domain, we consider how well you maintain a healthy emotional and

physical state, including how well you get your physical and emotional wants

and needs met in appropriate ways; how you cope with stress and changes in

your environment; and whether you take care of your own health, possessions,

and living area.

School-age children (age 6 to attainment of age 12). You should be independent

in most day-to-day activities (e.g., dressing yourself, bathing yourself), although

you may still need to be reminded sometimes to do these routinely. You should

begin to recognize that you are competent in doing some activities and that you

have difficulty with others. You should be able to identify those circumstances

when you feel good about yourself and when you feel bad. You should begin

to develop understanding of what is right and wrong, and what is acceptable

and unacceptable behavior. You should begin to demonstrate consistent

control over your behavior, and you should be able to avoid behaviors that are

unsafe or otherwise not good for you. You should begin to imitate more of the

behavior of adults you know.

20 C.F.R. §§ 416.926a(k); (k)(2)(iv).

Vizcarrondo argues that J.J.V.’s identified severe impairment of Lymphoma warrants

a finding of marked limitations in the functional domain of caring for oneself. (Doc. 19, at

16). However, the ALJ addressed J.J.V.’s Lymphoma through substantial evidence from the

record in deciding that he has no limitation in his ability to care for himself. (Doc. 12-2, at 16-

17). The ALJ considered Vizcarrondo's testimony regarding J.J.V.’s ability to care for himself,

perform chores, interact with others, follow instructions, engage in activities, and his

performance in school. (Doc. 12-2, at 17).

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First, the ALJ considered Vizcarrondo's testimony that J.J.V. could interact and get

along with others, take a bath or shower without assistance, brush his teeth, eat by himself

use utensils, pick up and put away toys, hang up clothes, assist with household chores, follow

instructions, and obey rules however he has problems with choosing clothes to wear. (Doc.

12-2, at 17; Doc. 12-6, at 11). Further, the ALJ noted that J.J.V. was at the usual baseline for

indoor activities and was able to attend vacations. (Doc. 12-2, at 17; Doc. 12-19, at 48).

The ALJ also considered the medical opinions of Dr. Popat and Dr. Draper and found

that their opinion that J.J.V. had no limitation in caring for himself was persuasive. (Doc. 12-

2, at 17-18; Doc. 12-3, at 6, 17). The ALJ noted that the opinions of Dr. Popat and Dr. Draper

were consistent with Vizcarrondo’s testimony that J.J.V. has no problem taking a bath or

shower without assistance, brushing his teeth, eating by himself using utensils, picking up and

putting away toys, hanging up clothes, and assisting with doing household chores. (Doc. 12-

2, at 17-18).

Finally, the ALJ considered the opinion of Dr. Kovatch that J.J.V. had extreme

limitations in the functional domain of caring for himself and found that it was inconsistent

with the record. (Doc. 12-2, at 18). Dr. Kovatch stated that J.J.V. “requires parental assistance

for self care, medication administration, [and] activities of daily life.” (Doc. 12-20, at 85).

However, the ALJ previously considered Vizcarrondo’s testimony that J.J.V. could conduct

self-care without assistance and that he was able to engage in the activities of daily life like

doing chores, attending school, playing sports, and taking trips. (Doc. 12-2, at 17-18). Further,

the ALJ noted that Dr. Kovatch’s opinion was limited to when J.J.V. was not in remission

and was still undergoing chemotherapy treatment. (Doc. 12-2, at 18).

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Thus, the ALJ considered substantial evidence regarding J.J.V.’s limitations when he

determined that J.J.V. has no limitations in the functional domain of caring for oneself. (Doc.

12-2, at 17).

B. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S CONSIDERATION OF DR.

KOVATCH’S OPINION.

Vizcarrondo contends that “[t]he ALJ erred and abused his discretion by [failing to

rely upon] the opinions offered in the Childhood Disability Evaluation Form from [J.J.V.’s

pediatric oncologist] Dr. [Jennifer] Kovatch.” (Doc. 19, at 20).

The ALJ adequately considered the opinion of Dr. Kovatch, MD. (Doc. 12-2, at 18;

Doc. 12-20, at 83). As this matter involves a claim filed after March 27, 2017, the new

regulatory framework governing the evaluation of medical opinions applies to the ALJ’s

evaluation of the medical opinions in the record. See Revisions to Rules Regarding the

Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017) (technical errors corrected

by 82 Fed. Reg. 15,132-01 (Mar. 27, 2017)); see also 82 Fed. Reg. 15263 (March 27, 2017); 82

Fed. Reg. 16869 (corrective notice) (explaining that SSR 96-2p and 96- 5p do not apply to

newly filed or pending claims after March 27, 2017). Under the new regulations, rather than

assigning weight to medical opinions, the Commissioner will articulate “how persuasive” he

or she finds the medical opinions. 20 C.F.R. § 404.1520c(b). The Commissioner's

consideration of medical opinions is guided by the following factors: supportability;

consistency; relationship with the claimant (including the length of the treatment relationship,

the frequency of examinations, the purpose of the treatment relationship, the extent of the

treatment relationship, and the examining relationship); specialization of the medical source;

and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1520c(c).

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The most important of these factors is the “supportability” of the opinion and the

“consistency” of the opinion. 20 C.F.R. § 404.1520c(b)(2).

The ALJ must explain how he or she considered the “supportability” and

“consistency” of a medical source's opinion. 20 C.F.R. § 404.1520c(b)(2). Generally, the ALJ

may, but is not required to, explain his or her consideration of the other factors, but if there

are two equally persuasive medical opinions about the same issue that are not exactly the

same, then the ALJ must explain how he or she considered the other factors. 20 C.F.R. §

404.1520c(b)(3). To facilitate judicial review, the ALJ's decision must be accompanied by “a

clear and satisfactory explication of the basis on which it rests” and the ALJ must indicate

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

certain evidence. Cotter, 642 F.2d at 704, 706-707. An ALJ need not undertake an exhaustive

discussion of all the evidence or “use particular language or adhere to a particular format in

conducting his analysis.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004); see Hur v.

Barnhart, 94 F. App'x 130, 133 (3d Cir. 2004) (“There is no requirement that the ALJ discuss

in his opinion every tidbit of evidence included in the record.”). However, an ALJ must

ensure “sufficient development of the record and explanation of findings to permit meaningful

review.” Jones, 364 F.3d at 505; see, e.g., Rivera v. Comm'r of Soc. Sec., 164 F. App'x 260, 262

(3d Cir. 2006) (“The only requirement is that, reading the ALJ's decision as a whole, there

must be sufficient development of the record and explanation of findings.”).

The ALJ “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. § 416.920c(a). The opinion of Dr. Kovatch

is an acceptable medical source as she is J.J.V.’s treating oncologist and a medical doctor.

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(Doc. 12-20, at 61); 20 C.F.R. § 416.902(a)(1). However, under the new regulations, treating

physicians are “not entitled to any deference given [his or her] status as [a] ‘treating

physicia[n].’” See Duhl v. Kijakazi, No. 20-1123, 2021 WL 5909819, at *3 (W.D. Pa. Dec. 14,

2021).

Vizcarrondo argues that as J.J.V.’s treating physician, the ALJ failed to properly

consider Dr. Kovatch’s opinion and instead relied on the opinions of the two State Agency

Medical Consultants, Dr. Draper and Dr. Popat, whose opinions were based upon insufficient

evidence. (Doc. 19, at 22-23). Further, Vizcarrondo claims that although Dr. Kovatch’s

findings are limited to time period of January 2, 2019, to April 14, 2019, her opinions should

be considered as part of the overall medical record. (Doc. 19, at 22-23). The Commissioner

argues that the ALJ adequately explained his determinations that the opinions of Dr. Popat

and Dr. Draper were persuasive and that the opinion of Dr. Kovatch was not. (Doc. 22, at

19-20). Specifically, the Commissioner argues that Dr. Kovatch’s opinion only includes a

four-month period and it does not “satisfy the required 12-month durational requirement.”

(Doc. 22, at 20). Further, the Commissioner contends that the ALJ explained how Dr.

Kovatch’s opinion was not supported or consistent with the record including her own

treatment records demonstrating the remission of J.J.V.’s cancer, the lack of a need for

additional significant treatment following the completion of chemotherapy, J.J.V.’s return to

school, and J.J.V.’s enjoyment of trips and amusement parks. (Doc. 22, at 21-22).

The ALJ considered the opinion of Dr. Kovatch and found that her opinion was not

persuasive. (Doc. 12-2, at 18). The ALJ stated

The March 10, 2020 opinion of treating oncologist, Jennifer Kovatch, MD, is

not persuasive (Exhibit 22F). Dr. Kovatch opined marked/extreme limitations.

However, she indicated that her opined limitations only apply to the time

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period of January 2, 2019 to April 14, 2019 (Id. at 7). This is less than 12

months. With a file date of February 19, 2019, there is no period of 12 months

or more. Furthermore, Dr. Kovatch noted that [J.J.V.] completed

chemotherapy on April 14, 2019 (Id.). On August 7, 2019, Dr. Kovatch noted

that [J.J.V.] was in complete remission and that the mediport was removed on

June 14, 2019 (Exhibit 19F/9). Also, on August 7, 2019, Dr. Kovatch noted

that [J.J.V.] visited Myrtle Beach and Dorney Park during the Summer of 2019

(Exhibit 19F/3). On February 5, 2020, Dr. Kovatch noted that [J.J.V.] spent

week at Disney in December 2019 (Exhibit 21F/12). Dr. Kovatch noted that

[J.J.V.] has been sleeping well and enjoys being back in school (Id.).

(Doc. 12-2, at 18; Doc. 12-19, at 48, 54; Doc. 12-20, at 41, 82-87).

Although the ALJ did not explicitly state the words “consistent” or “supported” it is clear

from his opinion that such factors were considered. See Jones, 364 F.3d at 505. The ALJ noted

Dr. Kovatch’s opinion that J.J.V. has marked or extreme limitations in each domain. (Doc.

12-2, at 18; Doc. 12-20, at 84-86). However, the ALJ also considered Dr. Kovatch’s findings

that J.J.V. had completed chemotherapy, was in complete remission, that his mediport was

removed, and that J.J.V. had been enjoying various activities such as trips to the beach and

amusement park and his return to school. (Doc. 12-2, at 18; Doc. 12-19, at 48, 54). The ALJ

discussed evidence in the record he found conflicting with Dr. Kovatch’s opinion that J.J.V.

suffered from marked or extreme limitations in each domain. (Doc. 12-2, at 18). Further, the

ALJ noted that Dr. Kovatch’s opinion spanned from January 2, 2019, to April 14, 2019,

which is less than the required 12-month durational period. (Doc. 12-2, at 18; Doc. 12-20, at

87).

Thus, the ALJ adequately discussed the opinion of Dr. Kovatch and compared it with

the other evidence in the record finding that the opinion was not persuasive. (Doc. 12-2, at

18; Doc. 12-20, at 82-87).

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The ALJ also explained his reasoning in finding the opinion of Dr. Popat, a State

Agency medical consultant, persuasive. (Doc. 12-2, at 18). The ALJ explained that Dr.

Popat’s opinion that J.J.V. has no limitation in acquiring and using information, attending

and completing tasks, interacting and relating with others, moving about and manipulating

objects, and caring for himself, and a marked limitation in health and physical well-being was

consistent with and supported by the record, including the most recent CT scan

indicating [J.J.V.’s] condition is in remission, [J.J.V.’s] ability to achieve honor

roll while receiving at home instruction, the August 2019 oncology progress

notes indicating [J.J.V.] was able to go on vacations during the summer of 2019

and that he did not have any pain associated with his biopsy scar and no issues

with illness, constipation, nausea, weight loss or fevers at that time, and the

oncology progress notes indicating [J.J.V.’s] improvement of symptoms related

to chemotherapy treatment after the treatment had ended. Moreover,

[Vizcarrondo] reported that [J.J.V.] has no problems zipping and buttoning

clothes, tying shoelaces, taking a bath or shower without assistance, brushing

his teeth, eating by himself using utensils, picking up and putting away toys,

hanging up clothes, assisting with doing household chores, following

instructions, obeying rules, getting to school on time, and accepting criticism

or correction.

(Doc. 12-2, at 17-18; Doc. 12-3, at 5-6).

Additionally, the ALJ adequately considered the opinion of Dr. Draper and explained

why he found the opinion persuasive. (Doc. 12-2, at 18). Specifically, the ALJ noted that Dr.

Draper’s opinion that J.J.V. has no limitation in acquiring and using information, attending

and completing tasks, interacting and relating with others, moving about and manipulating

objects, and caring for himself was

supported by and consistent with the record, including the most recent CT scan

results showing complete remission, and the oncology progress notes indicating

[J.J.V.] was able to take family vacations in the summer of 2019. Moreover,

[Vizcarrondo] reported that [J.J.V.] has no problems zipping and buttoning

clothes, tying shoelaces, taking a bath or shower without assistance, brushing

his teeth, eating by himself using utensils, picking up and putting away toys,

hanging up clothes, assisting with doing household chores, following

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instructions, obeying rules, getting to school on time, and accepting criticism

or correction.

(Doc. 12-2, at 18; Doc. 12-3, at 15-19).

Further, the ALJ explained that J.J.V.’s limitations in health and physical well-being are more

extensive than Dr. Draper opined noting J.J.V.’s

history of treatment for lymphoma, including an excisional biopsy on

December 5, 2018 that showing a nodular lymphocyte predominant Hodgkin

lymphoma, a staging PET CT scan on January 2019 that confirmed the biopsy

impression, and four (4) chemotherapy treatments from February 2019 through

April 2019, the medical records indicating [J.J.V.] experienced symptoms

related to chemotherapy treatment, and the need for ongoing oncology

evaluation over a five (5) year period.

(Doc. 12-2, at 18; Doc. 12-3, at 15-19).

The ALJ explicitly explained the consistency and supportability of the opinions of the

State Agency consultants Dr. Popat and Dr. Draper in comparison to the record. (Doc. 12-2,

at 17-18). Thus, substantial evidence supports the ALJ’s use of Dr. Popat and Dr. Draper’s

opinions.

The ALJ clearly utilized and discussed Dr. Kovatch’s opinion and response to the

Childhood Disability Evaluation Form in his opinion and the court may not reweigh the

evidence in its determination. See Burns, 312 F.3d at 118. Further, the ALJ adequately

explained the supportability and consistency of the opinions of Dr. Popat and Dr. Draper.

(Doc. 12-2, at 17-18). As such, substantial evidence supports the ALJ’s use of the medical

opinions of Dr. Kovatch, Dr. Popat, and Dr. Draper as the ALJ utilized a wide array of

evidence from the record in his analysis of J.J.V.’s functional domains.

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V. CONCLUSION

Based on the foregoing, IT IS ORDERED that the Commissioner’s decision to deny

Vizcarrondo disability benefits be AFFIRMED, final judgment be issued in favor of the

Commissioner, and the Clerk of Court be directed to CLOSE this case.

An appropriate Order follows.

Dated: August 5, 2022 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

Chief United States Magistrate Judge

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