Hilda Luz Velazquez Mendez v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

HILDA L. VELAZQUEZ MENDEZ

ex rel. S.M.R.V.,

Plaintiff, CIVIL ACTION NO. 3:21-cv-00260

v. (SAPORITO, M.J.)

KILOLO KIJAKAZI,1 Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM

The plaintiff, Hilda L. Velazquez Mendez, as parent and natural

guardian of S.M.R.V., her minor daughter, brought this action under 42

U.S.C. § 1383(c)(3), and, as incorporated by reference, 42 U.S.C. § 405(g),

seeking judicial review of the final decision of the Commissioner or Social

security denying S.M.R.V.’s claim for supplemental security income

benefits under Title XVI of the Social Security Act (the “Act”). The matter

has been referred to the undersigned United States magistrate judge on

1 Kilolo Kijakazi became the Acting Commissioner of Social

Security on July 9, 2021. She has been automatically substituted in place

of the original defendant, Andrew Saul. See Fed. R. Civ. P. 25(d); see also

42 U.S.C. § 405(g) (action survives regardless of any change in the person

occupying the office of Commissioner of Social Security). The caption in

this case is amended to reflect this change.

consent of the parties, pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P.

73.

I. BACKGROUND

On February 28, 2018, Velazquez protectively filed an application

for supplemental security income (“SSI”) benefits on behalf of her minor

daughter, S.M.R.V., alleging a disability onset date of January 1, 2014.

The claim was initially denied by state agency reviewers on October 30,

2018. The plaintiff then requested an administrative hearing.

A hearing was held on September 19, 2019, before an

administrative law judge, Randy Riley (the “ALJ”). Velazquez appeared

and testified on behalf of S.M.R.V., with the assistance of a Spanish-

language interpreter. The plaintiff was represented by counsel at the

hearing.

On May 6, 2020, the ALJ denied S.M.R.V.’s application for benefits

in a written decision. The ALJ determined that S.M.R.V. was not entitled

to SSI benefits because she was not under a disability as defined by the

Act. Specifically, the ALJ found that S.M.R.V. did not have an

impairment or combination of impairments that meets, medically equals,

or functionally equals the severity of one of the listed impairments in 20

C.F.R. Part 404, Subpart P, Appendix 1.

The plaintiff sought further administrative review of her claim by

the Appeals Council, but her request was denied on December 16, 2020,

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

Commissioner subject to judicial review by this court.

The plaintiff timely filed her complaint in this court on February

12, 2021. The Commissioner has filed an answer to the complaint,

together with a certified copy of the administrative record. Both parties

have filed their briefs, and this matter is now ripe for decision.

II. STANDARD OF REVIEW

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); 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) (internal quotation marks omitted). 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 this Court, therefore, is not whether S.M.R.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 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 . . . .”).

With respect to children under the age of 18, the Social Security

regulations consider an individual to be “disabled” if he or she has “a

medically determinable physical or mental impairment2 or combination

of impairments that causes marked and severe functional limitation, and

that can be expected to cause death or that has lasted or can be expected

to last for a continuous period of not less than 12 months.” 20 C.F.R.

§ 416.906; see also 42 U.S.C. § 1382c(a)(3)(C)(i). A child has “marked and

severe functional limitations” if he or she has an impairment or

combination of impairments that “meets, medically equals, or

functionally equals” the listings found at 20 C.F.R., Part 404, Subpart P,

2 “[A] physical or mental impairment is an impairment that results

from anatomical, physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory diagnostic

techniques.” 42 U.S.C. § 1382c(a)(3)(D); see also 20 C.F.R. § 416.908.

Appendix 1. Id. § 416.902; see also id. § 416.911(b). However, “no

individual under the age of 18 who engages in substantial gainful

activity3 . . . may be considered to be disabled.” 42 U.S.C.

§ 1382c(a)(3)(C)(ii); see also 20 C.F.R. § 416.906.

The Commissioner follows a three-step sequential analysis to

ascertain whether a child is disabled and therefore eligible to receive SSI

benefits. See 20 C.F.R. § 416.924(a). Under this process, the ALJ must

determine in sequence: (1) whether the child is engaged in substantial

gainful activity (i.e., whether the child is working), id. § 416.924(b); (2)

whether the child has a medically determinable impairment or

combination of impairments that is severe (i.e., whether the child has an

impairment or combination of impairments that cause “more than

minimal functional limitations”), id. § 416.924(c); and (3) whether the

impairment or combination of impairments meets or medically equals the

severity of a listing, or functionally equals the listings, in 20 C.F.R., Part

404, Subpart P, Appendix 1, which describes impairments that cause

marked and severe functional limitations, id. § 416.924(d).

3 “Substantial gainful activity means work that . . . [i]nvolves doing

significant and productive physical or mental duties; and . . . [i]s done (or

intended) for pay or profit.” 20 C.F.R. § 416.910.

Within each of the individual listings considered at step three, the

regulations specify the objective medical and other findings needed to

satisfy the criteria of that listing. An impairment or combination of

impairments meets a listing when it satisfies all of the criteria of that

specified listing, and it meets the duration requirement (i.e., it is expected

to cause death or has lasted or is expected to last for a continuous period

of not less than 12 months). Id. § 416.925(c)(3); see also id. § 416.909

(duration requirement). An impairment or combination of impairments

medically equals a listing when it is at least equal in severity and

duration to the criteria of any listed impairment (e.g., the child exhibits

all but one of the findings specified in a particular listing, but other

related findings are at least of equal medical significance to the required

criteria). Id. § 416.926(a),(b). An impairment or combination of

impairments functionally equals the listings when it “result[s] in

‘marked’ limitations in two domains of functioning or an ‘extreme’

limitation in one domain.” Id. § 416.926a(a).

In assessing functional equivalence, the Commissioner considers

how the child functions in terms of six “domains” or broad areas of

functioning intended to capture all that a child can or cannot do:

(1) acquiring and using information; (2) attending and completing tasks;

(3) interacting and relating with other children; (4) moving about and

manipulating objects; (5) caring for yourself; and (6) health and physical

well-being. Id. § 416.926a(b)(1). A child has a “marked limitation” in a

domain when his impairment or combination of impairments interferes

seriously with his ability to independently initiate, sustain, or complete

activities; a “marked limitation” is more than moderate but less than

extreme. Id. § 416.926a(e)(2). A child has an “extreme limitation” in a

domain when his impairment or combination of impairments interferes

very seriously with his ability to independently initiate, sustain, or

complete activities; an “extreme limitation” is more than marked. Id.

§ 416.926a(e)(3). “Extreme limitation” is the rating given to the worst

limitations, but it does not necessarily mean a total lack or loss of ability

to function. Id.

III. THE ALJ’S DECISION

In this case, the ALJ reached the third step of the sequence, at

which point he determined that S.M.R.V. was not disabled. The ALJ first

determined that S.M.R.V. had not engaged in substantial gainful activity

since February 28, 2018, the date when her application for SSI benefits

was filed. The ALJ next found that the medical evidence of record

established that S.M.R.V. had severe impairments of: ADHD; unspecified

disruptive, impulse-control, and conduct disorder; anxiety; and

adjustment disorder.

At step three, the ALJ evaluated S.M.R.V.’s impairments under

listings 112.04 (depressive, bipolar, and related disorders), 112.06

(anxiety and obsessive-compulsive disorders), 112.08 (personality and

impulse-control disorders), and 112.11 (neurodevelopmental disorders),

and found that S.M.R.V.’s impairments did not meet or medically equal

these listings. In doing so, the ALJ considered S.M.R.V.’s limitations in

four broad functional areas as a result of mental disorders, finding no

more than moderate limitations in all four functional areas—

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

with others, (3) concentrating, persisting, or maintaining pace, and (4)

adapting or managing oneself. See generally 20 C.F.R. § 416.920a(c)

(explaining functional limitation rating process for mental impairments);

20 C.F.R. pt. 404 subpt. P app. 1, § 112.00(E) (explaining the four areas

of mental functioning); id. § 112.00(F) (explaining process for using

paragraph B criteria to evaluate mental impairments). In connection

with listings 112.04 and 112.06, the ALJ also considered whether

S.M.R.V.’s mental disorders were “serious and persistent,” finding that

her impairments had not required medical treatment, mental health

therapy, psychosocial support, or a highly structured setting that is

ongoing and that diminished the symptoms and signs of her mental

disorders, nor that she had achieved only marginal adjustment as a

result. See generally id. § 112.00(G) (explaining process for using

alternative paragraph C criteria to evaluate certain mental

impairments).

The ALJ then considered whether S.M.R.V.’s impairments, both

severe and non-severe, functionally equaled the listings. In doing so, the

ALJ followed the “whole child” approach set forth in Social Security

Ruling 09-1p, which provides:

The functional equivalence rules require us to begin by

considering how the child functions every day and in

all settings compared to other children the same age

who do not have impairments. After we determine how

the child functions in all settings, we use the domains

to create a picture of how, and the extent to which, the

child is limited by identifying the abilities that are used

to do each activity, and assigning each activity to any

and all of the domains involved in doing it. We then

determine whether the child’s medically determinable

impairment(s) accounts for the limitations we have

identified. Finally, we rate the overall severity of

limitation in each domain to determine whether the

child is “disabled” as defined in the Act.

Soc. Sec. Ruling 09-1p, 2009 WL 396031, at *2. The ALJ considered the

evidence of record and presented detailed findings with respect to

S.M.R.V.’s limitations and their severity, domain by domain. Ultimately,

the ALJ concluded that S.M.R.V. had: (a) less than a marked limitation

in acquiring and using information; (b) less than a marked limitation in

attending and completing tasks; (c) less than a marked limitation in

interacting and relating with others; (d) no limitation in moving about

and manipulating objects; (e) less than a marked limitation in the ability

to care for herself; and (f) no limitation in health and physical well-being.

Having found that S.M.R.V. did not have an impairment or combination

of impairments that resulted in “marked” limitations in two domains of

functioning or an “extreme” limitation in one domain, the ALJ concluded

that S.M.R.V.’s impairments did not functionally equal the listings at 20

C.F.R., Part 404, Subpart P, Appendix 1, and therefore she was not

disabled and not entitled to receive SSI benefits.

IV. DISCUSSION

Under the Social Security Act, the question before this court is not

whether the claimant is disabled, but whether the Commissioner’s

finding that he or she is not disabled is supported by substantial evidence

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

generally 42 U.S.C. § 405(g)(sentence five); id. § 1383(c)(3); Myers, 373 F.

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

disability insurance benefits and supplemental security income

administrative decisions).

The plaintiff asserts on appeal that the ALJ’s decision is not

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

S.M.R.V’s impairments “not severe” at step two of the three-step

evaluation process; (2) the ALJ failed to properly evaluate prior

administrative findings, including the medical opinion of a non-

examining state agency psychological consultant; (3) the ALJ failed to

properly evaluate the medical opinion of the plaintiff’s treating mental

health provider, a certified registered nurse practitioner; (4) the ALJ

failed to properly consider other evidence of S.M.R.V.’s functional

limitations, including teacher questionnaires and IEP reports; (5) the

ALJ failed to properly consider Velazquez’s subjective allegations

regarding S.M.R.V.’s symptoms; and (6) viewed in whole, the evidence of

record supported a finding of disability.4

A. Step Two Determination

The plaintiff contends that the ALJ erred in failing to find various

of S.M.R.V.’s medical conditions were also severe impairments. Namely,

the plaintiff contends that the ALJ erred in failing to find that S.M.R.V.

had the additional severe impairments of intermittent explosive disorder,

depression, and sleep disorder.

At step two, the ALJ found that S.M.R.V. had several severe

impairments including: ADHD, unspecified disruptive, impulse-control,

and conduct disorder, anxiety, and adjustment disorder. The ALJ then

proceeded on to step three of the evaluation process.

At step two, a claimant bears the burden of proving that he suffers

from “a medically severe impairment or combination of impairments.”

4 The plaintiff’s brief articulated three conclusory, extremely

general claims of error: (1) the ALJ’s functional equivalence analysis

failed to include all limitations caused by S.M.R.V.’s severe impairments;

(2) the ALJ failed to include certain other impairments among the severe

impairments found at step two of the three-step evaluation process; and

(3) the ALJ’s functional equivalence determination was defective because

the ALJ failed to afford appropriate weight to medical opinions on which

it was based. Although not clearly articulated by plaintiff’s counsel, a

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

grievances rest on the specific errors we have articulated above.

Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). But the step-two inquiry

is merely “a de minimis screening device to dispose of groundless claims.”

Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). “[T]he

analysis at step two is wholly independent of the analysis at later

steps. . . . [N]ot finding certain impairments severe at step two does not

affect the ultimate disability determination.” Alvarado v. Colvin, 147 F.

Supp. 3d 297, 311 (E.D. Pa. 2015); see also Ray v. Berryhill, 915 F.3d 486,

492 (7th Cir. 2019) (per curiam) (“Step two is a threshold inquiry; so long

as one of a claimant’s limitations is found to be severe, error at that step

is harmless.”); Salles v. Comm’r of Soc. Sec., 229 Fed. App’x 140, 145 n.2

(3d Cir. 2007) (“Because the ALJ found in [the claimant’s] favor at Step

Two, even if he had erroneously concluded that some other impairments

were nonsevere, any error was harmless.”).

Here, the ALJ found in S.M.R.V.’s favor at step two, finding that

she had several other severe impairments, and then proceeded on to step

three of the evaluation process. Thus, any error with respect to

evaluation of the severity of any other impairments at step two was

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

App’x at 88.5

B. Medical Opinions and Prior Administrative Findings

The plaintiff contends that the ALJ’s decision is not supported by

substantial evidence because the ALJ erred in his evaluation of

conflicting medical opinions and prior administrative findings presented

in the administrative proceedings below. As a preface, we note the well-

established principle that, in evaluating the medical opinion evidence of

record, an “ALJ is not only entitled, but required to choose between”

conflicting medical opinions. Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.

1981). “[T]he possibility of drawing two inconsistent conclusions from the

evidence does not prevent [an ALJ’s decision] from being supported by

substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607,

620 (1966). Moreover, “[i]n the process of reviewing the record for

substantial evidence, we may not ‘weigh the evidence or substitute [our

5 Moreover, as the Commissioner notes in her brief, the medical

evidence discussing S.M.R.V.’s sleep and mood conditions addressed

them as symptoms of her diagnosed severe mental impairments, not as

independent mental disorders in their own right. While the evidence

cited by the plaintiff references a reported history of intermittent

explosive disorder, there is no objective medical evidence of such an

active diagnosis; this aspect of S.M.R.V.’s behavioral health appears to

be addressed by her unspecified disruptive, impulse-control, and conduct

disorder diagnosis.

own] conclusions for those of the fact-finder.’” Rutherford v. Barnhart,

399 F.3d 546, 552 (3d Cir. 2005) (quoting Williams v. Sullivan, 970 F.2d

1178, 1182 (3d Cir. 1992)). Ultimately, to reverse the ALJ’s findings and

decision, “we must find that the evidence not only supports [a contrary]

conclusion, but compels it.” Immigration & Naturalization Serv. v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992); see also Smith v. Chater, 99 F.3d

780, 782 & n.3 (6th Cir. 1996) (citing Elias-Zacarias in the context of

social security disability benefits); Hert v. Barnhart, 234 F. Supp. 2d 832,

837 (N.D. Ill. 2002) (“The court may reverse the Commissioner’s decision

only if the evidence ‘compels’ reversal, not merely because the evidence

supports a contrary decision.”) (citing Elias-Zacarias).

Here, the plaintiff originally filed her administrative claim for

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

governing the evaluation of medical opinion evidence applies to this

case.6

6 We note that, with respect to the ALJ’s evaluation of medical

opinions, the plaintiff has relied on the old regulations in support of her

argument that nurse practitioner Harper’s opinion is entitled to “greater

weight” than that afforded to a non-examining state agency medical

consultant. As discussed in the text that follows, those regulations simply

no longer apply. But even under these superseded regulations, as a nurse

(continued on next page)

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

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

1:20-CV-00945, 2021 WL 5918706, at *4 (M.D. Pa. Dec. 15, 2021). “Prior

to March 2017, ALJs were required to follow regulations which defined

medical opinions narrowly and created a hierarchy of medical source

opinions with treating sources at the apex of this hierarchy.” Densberger

v. Saul, Civil No. 1:20-CV-772, 2021 WL 1172982, at *7 (M.D. Pa. Mar.

29, 2021). Under this prior regulatory scheme, the Social Security

Administration “followed the ‘treating physician rule,’ which required the

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

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

diagnostic techniques’ and not ‘inconsistent with the other substantial

evidence’ in the record.” Michelle K. v. Comm’r of Soc. Sec., 527 F. Supp.

3d 476, 481 (W.D. Pa. 2021). However, the regulations governing the

practitioner, an opinion by Harper would not have been entitled to any

special weight, as she would not have qualified as an “acceptable medical

source” from whom a “medical opinion” could be received. See Will ex rel.

C.M.K. v. Comm’r of Soc. Sec., 366 F. Supp. 3d 419, 427 (W.D.N.Y. 2019);

see also 20 C.F.R. § 416.927(a)(1) (limiting “medical opinions” to

“statements from acceptable medical sources”); id. § 416.902(a) (defining

“acceptable medical source” to include advanced practice registered

nurses, such as certified registered nurse practitioners, only with respect

to claims filed under the new regulations).

evaluation of medical evidence were amended and the treating physician

rule was eliminated effective March 27, 2017. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5,844 (Jan.

18, 2017); see also Densberger, 202 WL 1172982, at *7–*8; Michelle K.,

527 F. Supp. 3d at 481. “The range of opinions that ALJs were enjoined

to consider were broadened substantially and the approach to evaluating

opinions was changed from a hierarchical form of review to a more

holistic analysis.” Densberger, 2021 WL 1172982, at *7.

Under these new regulations, the agency “will not defer or give any

specific evidentiary weight, including controlling weight, to any medical

opinion(s) or prior administrative medical finding(s), including those

from [the claimant’s] medical sources.” 20 C.F.R. §§ 404.1520(a),

416.920c(a). “Rather than assigning weight to medical opinions, [an ALJ]

will articulate ‘how persuasive’ he or she finds the medical opinions.”

Knittle, 2021 WL 5918706, at *4; see also 20 C.F.R. §§ 404.1520,

416.920c(b). If a medical source provides one or more medical opinions,

the agency will consider those medical opinions from that medical source

together using the following factors: “(1) supportability; (2) consistency;

(3) relationship with the claimant, including the length of the treatment

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

treatment relationship, and the examining relationship; (4)

specialization; and (5) any other factors that ‘tend to support or

contradict a medical opinion or prior administrative medical finding.’”

Michelle K., 527 F. Supp. 3d at 481; see also 20 C.F.R. §§ 404.1520c(a),

416.920c(a); Densberger, 2021 WL 1172982, at *8. Under the new

regulations, “[t]he two ‘most important factors for determining the

persuasiveness of medical opinions are consistency and supportability,’

which are the ‘same factors’ that formed the foundation of the treating

source rule.” Densberger, 2021 WL 1172982, at *8; see also 20 C.F.R.

§ 416.920c(b)(2); Michelle K., 527 F. Supp. 3d at 481; compare 20 C.F.R.

§ 416.920c(c)(1) (supportability), and id. § 416.920c(c)(2) (consistency),

with id. § 416.927(c)(3) (supportability), and id. § 416.927(c)(4)

(consistency).7 An ALJ is specifically required to address these two

7 With respect to supportability, the new regulations provide that

“[t]he more relevant the objective medical evidence and supporting

explanations presented by a medical source are to support his or her

medical opinion(s) or prior administrative medical finding(s), the more

persuasive the medical opinions or prior administrative medical

finding(s) will be.” 20 C.F.R. § 416.920c(c)(1). With respect to consistency,

the new regulations provide that “[t]he more consistent a medical

opinion(s) or prior administrative medical finding(s) is with the evidence

(continued on next page)

factors in his or her decision. See 20 C.F.R. § 416.920c(b)(2); see also

Densberger, 2021 1172982, at *8; Michelle K., 527 F. Supp. 3d at 482.

“The ALJ may—but is not required to—explain how he considered the

remaining factors.” Michelle K., 527 F. Supp. 3d at 482; see also 20 C.F.R.

§ 416.920c(b)(2); Densberger, 2021 WL 1172982, at *8. “However, when

the ALJ has found two or more medical opinions to be equally well

supported and consistent with the record, but not exactly the same, the

ALJ must articulate how he or she considered [the remaining]

factors . . . .” Densberger, 2021 WL 1172982, at *8; see also 20 C.F.R.

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

1. Prior Administrative Findings in this Case

The ALJ considered the prior administrative findings in this case,

which included the medical opinion of a state agency psychological

consultant.

The prior administrative findings included the opinion of a state

agency psychological consultant, John Gavazzi, Psy.D., who found that

M.S.R.V. had less than marked limitations in four of six domains—

from other medical sources and nonmedical sources in the claim, the

more persuasive the medical opinion(s) or prior administrative medical

finding(s) will be.” Id. § 416.920c(c)(2).

(a) acquiring and using information, (b) attending and completing tasks,

(c) interacting and relating with others, and (d) caring for yourself—and

no limitations in the two remaining domains—(e) moving about and

manipulating objects, and (f) health and physical well-being. In

evaluating the opinion of Dr. Gavazzi, the ALJ found that:

This opinion is persuasive. As a State agency

consultant, Dr. Gavazzi reviewed the claimant’s

available treatment records prior to rendering his

opinion, which he fully supported. He noted the

claimant’s issues with attention and concentration,

receives ESL (English as a secondary language) related

services at school, and has some limitations in terms of

self-care and coping skills. His assessment is also

consistent with the additional evidence received at the

hearing level and her overall progress with mobile

therapy services and that she was doing well in the

school setting.

(Tr. 20.)

The plaintiff only addresses this particular medical opinion in

passing. She appears to object to this evaluation of the state agency

psychological consultant’s findings and opinion based solely on the fact

that Dr. Gavazzi never actually examined S.M.R.V. in person. But the

medical opinion of a non-examining medical source, such as a state

agency medical or psychological consultant, may serve as substantial

evidence to the extent the opinion is consistent with other medical

evidence in the record. See Nichols v. Comm’r of Soc. Sec., 404 Fed. App’x

701, 704–05 (3d Cir. 2010); Thomas v. Barnhart, 278 F.3d 947, 957 (9th

Cir. 2002); My-Lein L. v. Comm’r of Soc. Sec., 551 F. Supp. 3d 100, 107

(W.D.N.Y. 2021); Ortiz v. Comm’r of Soc. Sec., 309 F. Supp. 3d 189, 205

(S.D.N.Y. 2018).

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

administrative findings concerning the plaintiff’s mental limitations,

including the medical opinions of a state agency psychological consultant,

is supported by substantial evidence and was reached based upon a

correct application of the relevant law.

2. Treating Mental Health Provider Opinion

On August 16, 2019, S.M.R.V.’s treating mental health provider,

Shannon Harper, CRNP, completed a childhood disability evaluation

form. Harper noted that S.M.R.V. had been treating with her practice on

a monthly basis for about one-and-a-half years. Harper reported current

diagnoses of attention deficit hyperactivity disorder (combined type),

oppositional defiant disorder, and unspecified anxiety disorder. She

opined that S.M.R.V.’s medically determinable impairment or

combination of impairments were functionally equal to the listings

because they resulted in marked limitations in two domains. Harper

found that S.M.R.V. had no limitations in three domains—(a) interacting

and relating with orders, (b) moving about and manipulating objects, and

(c) caring for yourself—and a less than marked limitation in a fourth

domain—(d) acquiring and using information. In the two remaining

domains, Harper found that S.M.R.V. had a marked limitations. In

finding a marked limitation in the domain of attending and completing

tasks, Harper explained that “[w]hen she is without ADHD meds she has

a harder time completing tasks [and] remaining focused.” (Tr. 616

(emphasis added).) In finding a marked limitation in the domain of health

and physical well-being, Harper explained that S.M.R.V. “[m]ay have

increased aggressive [and] emotional outbursts if she is without

medications.” (Tr. 617 (emphasis added).) In a narrative explanation of

her findings, Harper further acknowledged that S.M.R.V.

is currently taking medications for her behaviors. In

the past when she has not been medicated[,] she ha[s]

had verbal [and] physical aggression, self injurious

behaviors[,] [and] emotional dysregulation. . . . She

continues to receive medication management for her

behavioral disorders [and] [without] these meds she

would have difficulty in school [and] at home [with]

focus/attention [and] behaviors.

(Tr. 619.) Harper recorded a positive prognosis, noting that S.M.R.V.’s

“behaviors are well managed with medication [and] therapy.” (Tr. 620.)

She also expressly confirmed that S.M.R.V. was compliant with

treatment. (Id.)

Upon review of Harper’s opinion, the ALJ found it “not persuasive.”

In particular, the ALJ found that:

[T]he record indicates that the claimant is overall

healthy from a physical and mental standpoint with

the above marked limitation in that domain not

supported. Regardless, Ms. Harper’s support for the

marked limitation, which would be relevant to consider

under other domains, is not consistent with the

claimant’s overall improvement with treatment and

her overall stable presentation per Ms. Harper’s own

treatment notes. Ms. Harper’s other marked finding

also considers the claimant’s functioning without

medication and is not consistent with the claimant’s

overall academic performance and behavior within the

school setting as noted throughout the record.

(Tr. 21 (citations omitted).)

Here, the ALJ properly considered the medical evidence of record

and the relevant factors of supportability and consistency, expressly

articulating his findings on these required factors. Moreover, as the ALJ

noted, Harper’s “marked” findings in both domains were expressly

conditioned upon the child’s function when not taking her medications.

But, as Harper noted elsewhere in the same evaluation, S.M.R.V.’s

behavioral disorders were “well managed” with medication, and she was

compliant with treatment. It is implicit in Harper’s conditional finding

that S.M.R.V. had marked limitations in these two domains without

medication that the child had less than marked limitations with

medication, and thus the ALJ had substantial evidence to support his

finding that S.M.R.V.’s underlying mental impairments are capable of

being adequately controlled with medication therapy and, in that context,

they do not result in marked limitations in any of the six domains. See

Rickabaugh v. Berryhill, 271 F. Supp. 3d 721, 736 (D. Del. 2017); Sheriff

v. Barnhart, 244 F. Supp. 2d 412, 431 (W.D. Pa. 2002); see also Dearth v.

Barnhart, 34 Fed. App’x 874, 875 (3d Cir. 2002) (“If a symptom can be

reasonably controlled by medication or treatment, it is not disabling.”)

(quoting Gross v. Heckler, 785 F. 2d 1163, 1166 (4th Cir. 1986)); Ortiz ex

rel. A.L. v. Berryhill, Civil Action No. 3:16-CV-01613, 2017 WL 9324737,

at *5 (M.D. Pa. 2017) (“An impairment cannot serve as the basis for

disability if it can be reasonably controlled by treatment or medication.”).

Accordingly, we find the ALJ’s evaluation of the medical opinion by

treating nurse practitioner Harper is supported by substantial evidence

and was reached based upon a correct application of the relevant law.

C. Teacher Questionnaire and IEP Reports

The plaintiff contends that the ALJ’s decision is not supported by

substantial evidence because the ALJ failed to afford proper weight to

teacher questionnaires and IEP reports. The plaintiff refers to both types

of evidence only broadly, arguing that they “should have been afforded

more weight” than the medical opinion of a state agency psychological

consultant upon which the ALJ primarily relied.

The plaintiff argues that the ALJ failed to consider IEP reports that

supported greater limitations than those found by the ALJ, but the

plaintiff has failed to cite any such reports in her brief, presumably

because there simply are no IEP reports in the administrative record.

Indeed, it is clearly documented in the record before us that S.M.R.V. did

not have an IEP plan. The record includes an October 2018 response to a

request for administrative information completed by the school

psychologist at S.M.R.V.’s elementary school, who stated that:

[S.M.R.V.] is performing at grade level in all academic

areas. She is in regular education. She does not have

an IEP or a 504 plan. She does not receive intervention.

Her behavioral, social, and emotional functioning is

typical for a third grader.

(Tr. 299.) Moreover, the ALJ expressly discussed this report by the school

psychologist. (Tr. 19.)

The plaintiff also argues that the ALJ failed to consider one or more

teacher questionnaires that purportedly supported greater limitations

than those found by the ALJ. Here, the plaintiff does actually cite to one

such questionnaire that may be found in the record8—an October 22,

2018, teacher questionnaire completed by the school nurse at S.M.R.V.’s

elementary school. The school nurse reported that S.M.R.V.

demonstrated less-than-serious9 problems in the domain of acquiring and

using information, but she further explained that these problems

appeared to be “strictly . . . related to the language barrier,” rather than

any mental or emotional impairment. The school nurse reported that the

child also demonstrated less-than-serious problems in the domain of

interacting and relating with others, noting that it had not been

necessary to implement behavior modification strategies for the child.

8 She also cites S.M.R.V.’s school health record, which contains no

material information at all. (See Tr. 214–39.)

9 The form prompted the educator completing it to rate the child on

various activities within a given domain on a scale from “1” to “5.” A “1”

reflected “no problem” at all, a “2” reflected a “slight problem,” a “3”

reflected an “obvious problem,” a “4” reflected a “serious problem,” and a

“5” reflected a “very serious problem.” Even where the school nurse did

find some limitations, she rated none as “serious” or “very serious.”

She reported that S.M.R.V. demonstrated less-than-serious problems in

the domain of caring for herself, observing that the child had “little

patience” and was “quickly frustrated,” but also noting that “her

behaviors are never drastic.”10 The school nurse reported “no problems”

in the domain of attending and completing tasks and the domain of

moving about and manipulating objects. The form did not request

information on the domain of health and physical well-being. (Tr. 175–

82.)

Contrary to the plaintiff’s suggestion, the ALJ clearly considered

and expressly discussed this teacher questionnaire in detail. (Tr. 21.)

Ultimately, the ALJ found the school nurse’s report “only somewhat

persuasive to the extent that it shows that the claimant has some

problems in the school setting but with overall no significant problems or

concerns.” (Id.) Although an ALJ is required to consider such nonmedical

evidence, under the new regulatory framework discussed in the

preceding section, adopted effective March 27, 2017, “an ALJ is not

required to ‘weigh’ or ‘assess’ such nonmedical evidence, articulating

10 This emphasis on the word “drastic” was provided by the school

nurse, who underlined it in her comments.

reasons for assigning it specific persuasive value, as in the case of medical

evidence.” Jorge M. v. Kijakazi, Civ. No. 21-13794 (KM), 2022 WL

4536267, at *11 (D.N.J. Sept. 28, 2022). Under these new rules, “an ALJ

does not have to discuss the supportability or consistency of the opinion

because a teacher’s opinion is not a medical opinion.” Connors ex rel.

R.M.C. v. Kijakazi, Civil Action No. 4:20-CV-2338, 2022 WL 4080248, at

*11 (M.D. Pa. Sept. 6, 2022); see also 20 C.F.R. § 416.920c(d) (“We are not

required to articulate how we considered evidence from nonmedical

sources using the requirements [for evaluating medical opinions, set

forth] in paragraphs (a) through (c) in this section.”); Jorge M., 2022 WL

4536267, at *11 (recognizing that “the new rules relieve ALJs from the

burden of articulating their consideration of nonmedical source

statements using the same standards that apply to medical opinions and

prior administrative medical findings”). Indeed, “the regulations as

amended do not require the ALJ to cite or discuss such evidence.” Jorge

M., 2022 WL 4536267, at *12. Thus, the ALJ’s consideration of the

teacher questionnaire in this case, and the articulation of his reasoning

for finding it “only somewhat persuasive” satisfied the procedural

requirements of the agency’s regulations and is a reasonable

interpretation of the evidence itself.

Accordingly, we find the ALJ’s consideration of the nonmedical

evidence, including a teacher questionnaire completed by S.M.R.V.’s

school nurse, is supported by substantial evidence and was reached based

upon a correct application of the relevant law.

D. Subjective Evidence of the Plaintiff’s Symptoms

The plaintiff contends that the ALJ’s decision is not supported by

substantial evidence because the ALJ erred in his evaluation of

S.M.R.V.’s symptoms, including statements or testimony by the plaintiff

on behalf of her daughter. See generally 20 C.F.R. § 416.902(i)

(“Symptoms means your own description of your physical or mental

impairment.”).

Standing alone, a claimant’s allegation of pain or other symptoms

is not enough to establish an impairment or disability. 20 C.F.R.

§ 416.929(a); Prokopick v. Comm’r of Soc. Sec., 272 Fed. App’x 196, 199

(3d Cir. 2008) (“Under the regulations, an ALJ may not base a finding of

disability solely on a claimant’s statements about disabling pain . . . .”).

“An ALJ is permitted to reject a claimant’s subjective testimony as long

as he or she provides sufficient reasons for doing so.” Prokopick, 272 Fed.

App’x at 199 (citing Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433

(3d Cir. 1999)).

When evaluating a claimant’s subjective allegations of pain or other

symptoms, an ALJ utilizes a two-step process. Soc. Sec. Ruling 16-3p,

2017 WL 5180304, at *2 (revised Oct. 25, 2017). First, the ALJ must

determine whether there is a medically determinable impairment that

could reasonably be expected to produce the symptoms alleged. Id. at *3;

see also 20 C.F.R. § 416.929(b). A claimant cannot be found to be “disabled

based on alleged symptoms alone.” Soc. Sec. Ruling 16-3p, 2017 WL

5180304, at *4.

Once the ALJ has found that a medically determinable impairment

has been established, the ALJ must then evaluate the claimant’s

allegations about the intensity, persistence, or functionally limiting

effects of his or her symptoms against the evidence of record. Id. This

evaluation requires the ALJ to consider “the entire case record, including

the objective medical evidence; an individual’s statements about the

intensity, persistence, and limiting effects of symptoms; statements and

other information provided by medical sources and other persons; and

any other relevant evidence in the individual’s case record.” Id.

Here, in evaluating the plaintiff’s symptoms, the ALJ expressly

considered and extensively discussed both the medical and non-medical

evidence in the record. (Tr. 18–22.) This included the plaintiff’s

statements regarding the limiting effects of S.M.R.V.’s symptoms. Based

on his consideration of the whole record, the ALJ properly concluded that,

while S.M.R.V.’s “medically determinable impairments could reasonably

be expected to cause the alleged symptoms,” her mother’s “allegations

concerning the intensity, persistence and limiting effects of these

symptoms are not entirely consistent with the medical evidence and

other evidence in the record.” (Tr. 18.)

Although the plaintiff quibbles with the outcome of the ALJ’s

analysis of the evidence of record, it is clear that the ALJ properly

evaluated the child’s symptoms in accordance with the applicable

regulations, and that the ALJ reasonably concluded that,

notwithstanding the subjective allegations of symptoms, the evidence as

a whole did not support limitations in excess of those set forth in the

ALJ’s determination. While this same evidence might have also

reasonably supported the adoption of substantially greater limitations, it

did not compel such a finding.

Accordingly, we find the ALJ’s evaluation of the subjective evidence

of S.M.R.V.’s symptoms is supported by substantial evidence and was

reached based upon a correct application of the relevant law.

E. Re-Weighing the Evidence

Finally, the plaintiff appears to assert more generally an argument

that, viewing the record as a whole, there was substantial evidence to

support a finding of disability, and thus the ALJ’s contrary decision was

in error. The plaintiff summarizes the evidence and appears to suggest

that the ALJ’s decision should be reversed because some of this evidence

contradicts the ALJ’s findings. But it is the exclusive province of the ALJ,

not this court, to resolve conflicting evidence. “In the process of reviewing

the record for substantial evidence, we may not ‘weigh the evidence or

substitute our own conclusions for that of the fact-finder.’” Rutherford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (quoting Williams, 970 F.2d

at 1182); see also Connors, 2022 WL 4080248, at *12 (“[A] federal court

cannot reweigh the evidence on the record.”); Stancavage v. Saul, 469 F.

Supp. 3d 311, 334 (M.D. Pa. 2020) (citing Rutherford). Having otherwise

found substantial evidence to support the ALJ’s determination, this

claim of error is meritless.

V. CONCLUSION

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

finding that S.M.R.V. was not disabled is supported by substantial

evidence and was reached based upon a correct application of the

relevant law. Accordingly, the Commissioner’s decision denying

disability benefits is AFFIRMED.

An appropriate Order follows.

Dated: October 20, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge