Mertz v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KATHY MARIE MERTZ, : Civil No. 1:22-CV-223

:

Plaintiff :

:

v. : (Magistrate Judge Carlson)

:

KILOLO KIJAKAZI, :

Acting Commissioner of Social Security :

:

Defendant :

MEMORANDUM OPINION

I. Introduction

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

substantive review when considering Social Security appeals, 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)

1

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

erroneous standard).

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).

Kathy Mertz applied for disability and disability insurance benefits under

Title II of the Social Security Act on August 13, 2020, alleging an onset date of

disability of July 16, 2020. A hearing was held before an Administrative Law Judge

(“ALJ”), and the ALJ found that Mertz was not disabled during the relevant period

and denied her application for benefits. Mertz now appeals this decision, arguing

that the ALJ’s decision is not supported by substantial evidence.

However, after a review of the record, and mindful of the fact that substantial

evidence “means only—‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion,’” Biestek, 139 S. Ct. at 1154, 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.

II. Statement of Facts and of the Case

Mertz filed her claim for disability benefits on August 13, 2020, alleging an

onset date of July 16, 2020. (Tr. 10). Mertz alleged disability due to the following

impairments: COPD, anxiety disorder, bipolar, herniated disc, back problems,

degenerative disc disease, high blood pressure, acid reflux, and ulcerative colitis.

(Tr. 67). She was 48 years old at the time of her alleged onset of disability, had at

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least a high school education, and had past relevant work experience as a mail clerk

and order picker. (Tr. 20).

With respect to Mertz’s impairments,1 the medical record revealed the

following: prior to her alleged onset of disability, Mertz treated for her COPD. Thus,

in May of 2018, Mertz was seen by her treating physician, Dr. Joseph McGinley,

D.O., for her COPD. (Tr. 625). A review of her symptoms was negative for shortness

of breath, wheezing, and chest pains. (Id.) It was noted that Mertz was a smoker, and

she had reduced her smoking to about a half of a pack of cigarettes per day. (Id.) She

reported her breathing was better with her use of an inhaler 2 to 3 times per day. (Id.)

On physical examination, Mertz exhibited normal breath and effort, no respiratory

distress, and no wheezing or rales. (Tr. 626). In July of 2018, Dr. McGinley noted

that Mertz had still not quit smoking, but that she was started on Advair which helped

her breathing and reduced her need for her rescue inhaler. (Tr. 623). A physical

examination revealed a normal effort and breath, no respiratory distress, no wheezes,

and no rales. (Tr. 624).

In November of 2018, Mertz presented to the emergency room at St. Luke’s

Hospital complaining of shortness of breath and a cough. (Tr. 598). A physical

1 Mertz’s appeal primarily focuses on the ALJ’s treatment of her COPD and back

pain. Accordingly, we will limit our discussion to the records regarding her treatment

for those impairments.

3

examination revealed that Mertz was in mild respiratory distress, had no decreased

breath sounds but had wheezes and exhibited tenderness. (Tr. 600-01). A CT scan

of Mertz’s abdomen and pelvis was ordered, and the results indicated no pulmonary

embolism, mild emphysema, and several small pulmonary nodules that were

unchanged since April of 2018. (Tr. 419, 603). After a nebulizer treatment was

administered, Mertz reported a mild improvement of her symptoms and was in no

respiratory distress. (Tr. 604-05). After she was discharged from the hospital, Mertz

followed up with Dr. McGinley. (Tr. 597). Mertz reported that she continued to

smoke and experience shortness of breath, and her shortness of breath worsened with

heavy exertion. (Id.) On examination, she exhibited wheezing but was in no

respiratory distress. (Id.)

Mertz saw Dr. McGinley in January of 2019, during which time Mertz

reported she was doing “80%” better since her last visit. (Tr. 592). She further

reported that she reduced her smoking from one pack per day to about 3/4 pack per

day. (Id.) On physical examination, she had no wheezes and was in no respiratory

distress, and her breath and effort were normal. (Tr. 593). Mertz exhibited similar

findings during a February 2019 examination. (Tr. 701).

Treatment notes from the Occupational Therapy department at St. Luke’s in

January of 2020 indicate that Mertz had suffered a shoulder injury after a fall. (Tr.

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355). It was noted that she had been moving boxes around at work which sometimes

weighed up to 50 pounds, and that she did a lot of overhead lifting. (Id.) In February

of 2020, Mertz presented at the emergency room at St. Luke’s Hospital complaining

of a cough and body aches. (Tr. 506). She denied chest pains or shortness of breath.

(Id.) On examination, she had wheezes, but her effort was normal and she was not

in respiratory distress. (Tr. 509). Her musculoskeletal examination revealed normal

range of motion and no edema or tenderness. (Id.) Her oxygen levels were measured,

and she reported that her wheezing had improved and “[her] breathing was fine.”

(Tr. 510).

Mertz again reported to St. Luke’s Hospital in June of 2020 complaining of

shortness of breath. (Tr. 487). It was noted that she had a history of COPD and that

she continued to smoke 2 packs of cigarettes per day. (Tr. 488). On physical

examination, Mertz exhibited wheezing but no respiratory distress and no decreased

breath sounds. (Tr. 490). She had normal musculoskeletal range of motion with no

edema or tenderness. (Id.) An X-ray of her chest revealed no acute cardiopulmonary

disease. (Tr. 445, 492).

Mertz was referred to Lehigh Gastroenterology Associates in July of 2020 for

her history of ulcerative colitis. (Tr. 447). Her history of COPD was noted, as well

as her chronic smoking. (Tr. 448). At a July 2020 follow up with Dr. McGinley,

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Mertz reported shortness of breath, but on examination she was in no respiratory

distress and had no wheezes. (Tr. 461-62). Mertz treated with Dr. Mohamed Turki,

M.D., in September 2020 on referral from Dr. McGinley after an abnormal CT scan

of her chest. (Tr. 1240). It was noted that Mertz indicated she would not quit

smoking, and she was advised that her breathing would continue to worsen. (Tr.

1241). Mertz underwent a pulmonary function test (“PFT”). (Tr. 1244, 1266). Her

forced vital capacity (“FVC”) measured at 1.42L, 46% predicted, and her forced

expiratory volume in one second (“FEV1”) measured at 0.90 L, 38% predicted. (Tr.

1244-45). The interpretation of this result was severe obstructive airflow defect,

increased lung volumes indicative or air trapping, and mildly reduced diffusion

capacity. (Tr. 1245).

In December of 2020, Mertz followed up with Pulmonary Associates to

review the results of the September PFT. (Tr. 1235). It was noted that her results

indicated severe COPD, and it was recommended that she switch her medications.

(Id.) She presented with mild exacerbation of her COPD, and she was prescribed

prednisone and encouraged to use her nebulizer more frequently. (Id.) At this visit,

Mertz indicated that she had increased wheezing over the last several days, and that

she had recently lost her job. (Tr. 1236). She also reported that she had no desire to

quit smoking at that time. (Id.) On examination, her pulmonary effort was normal

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and she was in no respiratory distress, but she did exhibit wheezing. (Tr. 1237-38).

She had no swelling, tenderness, or deformity, and had normal range of motion. (Tr.

1238).

Mertz underwent a second PFT in March of 2021. (Tr. 1343). It was noted

that Mertz was cooperative and gave a good effort, but that she was short of breath

after every trial and light-headed after the fifth trial. (Id.) The results of this PFT

indicated that Mertz’s FVC was 2.10 L at her best pre-bronchodilator2 and 2.36 L at

her best post-bronchodilator, and her FEV1 measured at 1.33 L at her best pre-

bronchodilator and 1.67 L at her best post-bronchodilator. (Id.) Further examination

was recommended given the finding of a severe obstruction pre-bronchodilator and

probable restriction after. (Id.)

Around this same time, Mertz underwent an internal medicine examination

with Dr. Ziba Monfared, M.D. (Tr. 1339-50). Mertz reported using inhalers twice

per day for her COPD. (Tr. 1339). Her reported activities of daily living included

2 A bronchodilator test “is a method for measuring the changes in lung capacity after

inhaling a short-acting bronchodilator drug that dilates the airways. When an

obstructive ventilatory defect is observed, this test helps to diagnose and evaluate

asthma and COPD by measuring reversibility induced by the bronchodilator.”

National Library of Medicine, National Center for Biotechnology Information,

Spirometry and Bronchodilator Test, published online March 31, 2017,

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5392482/ (accessed February 14,

2023).

7

driving; cooking, cleaning, and doing laundry once per week; taking care of her

personal grooming; watching television; and going out to eat. (Tr. 1340). On

examination, Mertz had a normal gait but had some balance issues; there was no

abnormality in her thoracic spine, and her straight leg raise testing was negative

bilaterally; her strength was 5/5 in her upper and lower extremities; and her grip

strength was 5/5 bilaterally. (Tr. 1341-42). Dr. Monfared also noted a history of back

pain. (Tr. 1339). Dr. Monfared opined that Mertz could sit for 8 hours and stand and

walk for 4 hours in an 8-hour workday; she could frequently reach, handle, finger,

feel, and push/pull; she could occasionally climb stairs and ramps, ladders, ropes,

and scaffolds, balance, stoop, kneel, crouch, and crawl; and she could occasionally

be exposed to unprotected heights, humidity and wetness, extreme heat and cold,

and dust, odors, fumes, and pulmonary irritants. (Tr. 1346-49).

About a month later, Mertz was seen in the emergency room in April of 2021

complaining of back pain after trying to move her laundry from the washer to the

dryer. (Tr. 1656). She complained of pain radiating to her left leg. (Tr. 1658). A

physical examination revealed no shortness of breath or chest pains, tenderness in

her lower back with pain and spasms, and an antalgic gait but normal range of

motion. (Tr. 1658-59). An X-ray of her lumbar spine at this time revealed no acute

fracture or deformity. (Tr. 1660). In July of 2021, Mertz denied shortness of breath

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and wheezing, although she exhibited wheezing during a physical examination, and

it was noted that she takes medication for her COPD and she continued to smoke 2

packs of cigarettes per day. (Tr. 1868-70). Treatment notes from this time indicate

that Mertz reported being completely independent in her activities of daily living

and ambulation. (Tr. 1895).

With respect to her back pain, the medical records reveal that Mertz rarely

reported back pain, and it was only noted on a handful of occasions that she had

chronic back pain. Indeed, physical examinations from before and during the

relevant period consistently reported no back pain on physical examinations. (Tr.

498, 538-39, 627, 1709, 1873). There are, however, a few sporadic treatment notes

that reference Mertz’s lower back pain, including her emergency room visit in April

of 2021 where she reported injuring her back doing laundry. (Tr. 621, 631, 1651,

1854, 1889-90). An X-ray of the lumbar spine in April of 2021 showed minimal

degenerative changes. (Tr. 1668).

Dr. McGinley filled out a physical assessment form regarding Mertz’s

impairments in August of 2021. (Tr. 1944-45). On this form, Dr. McGinley opined

that Mertz would need to lie down or recline during the workday; could only walk

half of a block at a time without rest or pain; could sit, stand, and walk zero hours in

an 8-hour workday; would need to take continuous unscheduled breaks during the

9

workday; could never lift any weight; was limited in her grasping, reaching, and fine

manipulation; and that she would be absent from work more than 4 times per month.

(Id.)

It is against this medical backdrop that the ALJ held a telephonic hearing on

Mertz’s claim on August 16, 2021. (Tr. 38-65). At the hearing, both Mertz and a

Vocational Expert testified. (Id.) By a decision dated September 13, 2021, the ALJ

denied Mertz’s application for benefits. (Tr. 10-22).

In that decision, the ALJ first concluded that Mertz met the insured status

requirements under the Act through December 31, 2025, and she had not engaged in

any substantial gainful activity since her alleged onset date of July 16, 2020. (Tr.

12). At Step 2 of the sequential analysis that governs Social Security cases, the ALJ

found that Mertz had the following severe impairments: COPD, anxiety disorder,

depression, bipolar disorder, herniated disc, and degenerative disc disease of the

lumbar spine. (Tr. 13). At Step 3, the ALJ determined that Mertz did not have an

impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments. (Tr. 13-15). Specifically, the ALJ

considered listing 3.02 regarding chronic respiratory disorders, but found that Mertz

did not meet the requirements of this listing. (Tr. 14).

10

Between Steps 3 and 4, the ALJ fashioned a residual functional capacity

(“RFC”), considering Mertz’s limitations from her impairments:

After careful consideration of the entire record, the undersigned finds

that the claimant has the residual functional capacity to perform light

work as defined in 20 CFR 404.1567(b) with the following additional

limitations. The claimant should avoid unprotected heights and

climbing on ladders, ropes, or scaffolds. The claimant can occasionally

climb ramps and stairs. The claimant can tolerate occasional exposure

to temperature extremes, humidity, and environmental irritants. The

claimant is able to understand, retain, and carry out detailed but not

complex tasks. The claimant is limited to occasionally decision-

making. The claimant should be afforded the ability to alternate

between sitting and standing every 30 minutes.

(Tr. 16).

Specifically, in making the RFC determination, the ALJ considered the

medical evidence, medical opinions, and Mertz’s testimony regarding her

impairments. On this score, the ALJ considered the opinions of the state agency

consulting sources, Dr. David Hutz, M.D., and Dr. David Clark, M.D. Dr. Hutz

opined in November of 2020 that Mertz could perform a range of medium exertional

work, in that she could lift and carry 50 pounds occasionally and 25 pounds

frequently; could sit, stand, and walk for 6 hours in an 8-hour workday; could

frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl but never

climb ladders, ropes, or scaffolds; and should avoid concentrated exposure to

extreme heat and cold, humidity, hazards, and fumes, odors, dusts, and gases. (Tr.

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76-76). On reconsideration in March of 2021, Dr. Clark found that Mertz could

perform a range of light work, in that she could lift and carry up to 20 pounds

occasionally and 10 pounds frequently; could sit, stand, and walk for 6 hours in an

8-hour workday; and she could occasionally climb stairs and ramps but never

ladders, ropes, or scaffolds. (Tr. 95-100). Dr. Clark opined that Mertz was limited to

light work rather than medium work based upon medical evidence in the record of

changing conditions between November of 2020 and March of 2021. (Tr. 99-100).

The ALJ found Dr. Clark’s opinion generally persuasive, reasoning that the

limitation to light work accounted for Mertz’s lower back pain, and that Dr. Hutz’s

opinion on this score was less than persuasive. (Tr. 18-19). In the same vein, the ALJ

found Dr. Monfared’s opinion to be less than persuasive as the ALJ determined

Mertz would be limited to work at the light exertional level. (Tr. 19). Finally, the

ALJ considered Dr. McGinley’s 2021 opinion and found this opinion unpersuasive.

On this score, the ALJ noted that Dr. McGinley’s opinion was a checkbox form with

no further explanation of the extreme limitations noted therein. (Id.) The ALJ

reasoned that this opinion, which set forth extreme, work-preclusive limitations, was

inconsistent with the medical records, as the medical records contained sparse

evidence of treatment for Mertz’s COPD and lower back pain. (Id.)

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The ALJ also considered Mertz’s testimony but ultimately found that Mertz’s

complaints were not entirely consistent with the medical evidence of record. (Tr. 16-

18). Mertz testified that she had a hard time sitting for long periods of time because

her legs go numb, and that she experienced pain down through the backs of her legs.

(Tr. 49). She stated that walking bothered her, and that she had to stop and take

breaks. (Tr. 49-50). She reported that she could sit for about 30 minutes at a time,

stand for roughly 15 minutes, and walk for roughly 15 minutes. (Tr. 51). Mertz

further testified that humidity, extreme temperatures, and fumes and odors triggered

her COPD and took her breath away. (Tr. 50).

The ALJ ultimately found that Mertz’s complaints were not entirely consistent

with the medical record. On this score, the ALJ noted the plaintiff’s history of COPD

and the pulmonary function tests, but further noted Mertz’s continued refusal to quit

smoking. (Tr. 17). The ALJ also pointed to the physical examination findings during

the relevant period which showed normal pulmonary effort and no respiratory

distress, despite some wheezing. (Id.) The ALJ also considered Mertz’s activities of

daily living, which included taking care of pets, making sandwiches, doing

household chores, driving a car, shopping in stores, and spending time with her

husband. (Tr. 18).

13

Having arrived at this RFC assessment, the ALJ found at Step 4 that Mertz

could not perform her past relevant work but ultimately found at Step 5 that Mertz

could perform work available in the national economy as an office helper, marker,

and a cashier. (Tr. 20-21). Accordingly, the ALJ concluded that Mertz did not meet

the stringent standard for disability set by the Act and denied her claim. (Tr. 21-22).

This appeal followed. (Doc. 1). On appeal, Mertz contends that the ALJ erred

in his assessment of Dr. McGinley’s medical opinion. She further asserts that she

meets the requirements of Listing 3.02, and thus, the ALJ should have found her per

se disabled at Step 3. This case is fully briefed and is, therefore, ripe for resolution.

For the reasons set forth below, we will affirm the decision of the Commissioner.

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

14

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 recently 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

15

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 which 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

16

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.

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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); see also 20

C.F.R. §404.1505(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); 20 C.F.R. §404.1505(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). 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

18

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).

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 v. Comm’r

of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R.

§§404.1520(e), 404.1545(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).

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 have suggested 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)

19

(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: “There 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 where a well-supported medical source has identified limitations

that 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 an ALJ is relying upon other evidence, such

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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 v. Barnhart, 174 F. App'x 6, 11 (3d Cir.

2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D. Pa. 2015). 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 v. Barnhart, 312 F.3d 113, 129 (3d

Cir. 2002); see also 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); 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).

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

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

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

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 706-07. 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. Legal Benchmarks for the ALJ’s Assessment of Medical Opinions

The plaintiff filed this disability application in August of 2020 after a

paradigm shift in the manner in which medical opinions were evaluated when

assessing Social Security claims. 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. However,

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in March of 2017, the Commissioner’s regulations governing medical opinions

changed in a number of fundamental ways. 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.

As one court as aptly observed:

The regulations regarding the evaluation of medical evidence have been

amended for claims filed after March 27, 2017, and several of the prior

Social Security Rulings, including SSR 96-2p, have been rescinded.

According to the new regulations, the Commissioner “will no longer

give any specific evidentiary weight to medical opinions; this includes

giving controlling weight to any medical opinion.” Revisions to Rules

Regarding the Evaluation of Medical Evidence (“Revisions to Rules”),

2017 WL 168819, 82 Fed. Reg. 5844, at 5867–68 (Jan. 18, 2017), see

20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner

must consider all medical opinions and “evaluate their persuasiveness”

based on the following five factors: supportability; consistency;

relationship with the claimant; specialization; and “other factors.” 20

C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c).

Although the new regulations eliminate the perceived hierarchy of

medical sources, deference to specific medical opinions, and assigning

“weight” to a medical opinion, the ALJ must still “articulate how [he

or she] considered the medical opinions” and “how persuasive [he or

she] find[s] all of the medical opinions.” Id. at §§ 404.1520c(a) and

(b)(1), 416.920c(a) and (b)(1). The 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. Revisions to Rules, 82 Fed. Reg.

5844-01 at 5853.

An ALJ is specifically required to “explain how [he or she] considered

the supportability and consistency factors” for a medical opinion. 20

C.F.R. §§ 404.1520c (b)(2), 416.920c(b)(2). With respect to

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“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.” Id. at §§

404.1520c(c)(1), 416.920c(c)(1). The regulations provide that with

respect to “consistency,” “[t]he more consistent a medical opinion(s) or

prior administrative medical finding(s) is with the evidence from other

medical sources and nonmedical sources in the claim, the more

persuasive the medical opinion(s) or prior administrative medical

finding(s) will be.” Id. at §§ 404.1520c(c)(2), 416.920c(c)(2).

Under the new regulations an ALJ must consider, but need not

explicitly discuss, the three remaining factors in determining the

persuasiveness of a medical source's opinion. Id. at §§ 404.1520c(b)(2),

416.920c(b)(2). However, where 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 those factors contained in paragraphs (c)(3) through (c)(5).

Id. at §§ 404.1520c(b)(3), 416.920c(b)(3).

Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at

*5 (N.D.N.Y. Oct. 1, 2020).

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

Judicial review of this aspect of ALJ decision-making is still 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, when evaluating

medical opinions “the ALJ may choose whom to credit but ‘cannot reject evidence

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for no reason or for the wrong reason.’” Morales v. Apfel, 225 F.3d 310, 317 (3d

Cir. 2000) (quoting Mason, 994 F.2d at 1066). 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, 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). Finally, where there is

no evidence of any credible medical opinion supporting a claimant’s allegations of

disability “the proposition that an ALJ must always base his RFC on a medical

opinion from a physician is misguided.” Cummings, 129 F.Supp.3d at 214–15.

D. Legal Benchmarks Governing Step 3 of This Sequential Analysis

This dichotomy between the Act’s deferential standard of review and

caselaw’s requirement that ALJs sufficiently articulate their findings to permit

meaningful judicial review is particularly acute at Step 3 of this disability evaluation

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process. At Step 3 of this sequential analysis, the ALJ is required to determine

whether, singly or in combination, a claimant’s ailments and impairments are so

severe that they are per se disabling and entitle the claimant to benefits. As part of

this Step 3 disability evaluation process, the ALJ must determine whether a

claimant’s alleged impairment is equivalent to a number of listed impairments,

commonly referred to as listings, that are acknowledged as so severe as to preclude

substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii); 20 C.F.R. pt. 404, subpt.

P, App. 1; Burnett, 220 F.3d 112, 119.

In making this determination, the ALJ is guided by several basic principles

set forth by the social security regulations and case law. First, if a claimant’s

impairment meets or equals one of the listed impairments, the claimant is considered

disabled per se and is awarded benefits. 20 C.F.R. §416.920(d); Burnett, 220 F.3d

at 119. However, to qualify for benefits by showing that an impairment, or

combination of impairments, is equivalent to a listed impairment, a plaintiff bears

the burden of presenting “medical findings equivalent in severity to all the criteria

for the one most similar impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990)

(citing 20 C.F.R. §416.920(d); SSR 83-19 at 91). An impairment, no matter how

severe, that meets or equals only some of the criteria for a listed impairment is not

sufficient. Id.

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The determination of whether a claimant meets or equals a listing is a medical

one. To be found disabled under Step 3, a claimant must present medical evidence

or a medical opinion that his or her impairment meets or equals a listing. An ALJ is

not required to accept a physician’s opinion when that opinion is not supported by

the objective medical evidence in the record. Maddox v. Heckler, 619 F.Supp. 930,

935-936 (D.C. Okl. 1984); Carolyn A. Kubitschek & Jon C. Dubin, Social Security

Disability Law and Procedure in Federal Courts, § 3:22 (2014). However, it is the

responsibility of the ALJ to identify the relevant listed impairments, because it is

“the ALJ’s duty to investigate the facts and develop the arguments both for and

against granting benefits.” Burnett, 220 F.3d at 120 n.2.

On this score, however, it is also clearly established that the ALJ’s treatment

of this issue must go beyond a summary conclusion, since a bare conclusion “is

beyond meaningful judicial review.” Burnett, 220 F.3d at 119. Thus, case law “does

not require the ALJ to use particular language or adhere to a particular format in

conducting his analysis. Rather, the function . . . is to ensure that there is sufficient

development of the record and explanation of findings to permit meaningful review.”

Jones, 364 F.3d at 505. This goal is met when the ALJ’s decision, “read as a whole,”

id., permits a meaningful review of the SLJ’s Step 3 analysis. However, when “the

ALJ's conclusory statement [at Step 3] is . . . beyond meaningful judicial review,” a

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remand is required to adequately articulate the reasons for rejecting the claim at this

potentially outcome-determinative stage. Burnett, 220 F.3d at 119.

E. The ALJ’s Decision is Supported by Substantial Evidence.

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, 402 U.S. at 401, and “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, 487 U.S.

at 565. Judged against these deferential standards of review, we find that substantial

evidence supported the decision by the ALJ that Mertz was not disabled. Therefore,

we will affirm this decision.

Mertz first contends that the ALJ erred in his assessment of the opinion of Dr.

McGinley, Mertz’s treating physician. At the outset, we note that “[t]he ALJ–not

treating or examining physicians or State agency consultants–must make the

ultimate disability and RFC determinations.” Chandler, 667 F.3d at 361. Further, in

making this assessment of medical opinion evidence, “[a]n ALJ is [also] entitled

generally to credit parts of an opinion without crediting the entire opinion.” Durden,

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191 F.Supp.3d at 455. Finally, when there is no evidence of any credible medical

opinion supporting a claimant’s allegations of disability it is also well settled that

“the proposition that an ALJ must always base his RFC on a medical opinion from

a physician is misguided.” Cummings, 129 F.Supp.3d at 214–15.

Here, the ALJ considered the opinion of Dr. McGinley and found the opinion

unpersuasive. The ALJ first noted that the opinion was rendered in the form of a

checkbox form with no explanation as to the extreme limitations set forth in the

opinion. See Hevner v. Comm’r of Soc. Sec., 675 F. App’x 182, 184 (3d Cir. 2017)

(“[A]s we have said before, ‘check box’ forms that require little or no explanation .

. . are ‘weak evidence at best’ in the disability context”) (quoting Mason, 994 F.3d

at 1065)). The ALJ further reasoned that this opinion, which found extreme and

work-preclusive limitations, was not supported by or consistent with the claimant’s

medical records. The ALJ noted that the medical records contained scant evidence

of treatment for COPD and back pain. Indeed, as we have noted, the majority of the

plaintiff’s records indicated that she did not have back pain on examination during

the relevant period. Moreover, as the ALJ pointed out, while Mertz struggled with

ongoing breathing issues due to her COPD, she was a chronic smoker and refused

to quit smoking. In addition, her examinations frequently revealed normal

pulmonary effort, no decreased breathing sounds, no respiratory distress, and no

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wheezing. Accordingly, we discern no error with the ALJ’s treatment of this medical

opinion, whose extreme limitations drew virtually no support from the clinical

record.

Mertz also argues that the ALJ should have found her per se disabled at Step

3 because she meets listing 3.02. This listing evaluates respiratory disorders, such as

COPD. 20 C.F.R. Part 404, Subpart P, App’x 1, Listing 3.02. When considering this

listing, the regulations contemplate the use of the highest FEV1 value to evaluate a

respiratory disorder under 3.02A, and the highest FVC value to evaluate a respiratory

disorder under 3.02B. To meet listing 3.02A, the testing must demonstrate an “FEV1

less than or equal to the value in Table I-A or I-B for your age, gender, and height

without shoes.” Id., Listing 3.02A. To meet listing 3.02B, a claimant must

demonstrate an “FVC less than or equal to the value in Table II-A or II-B for your

age, gender, and height without shoes.” Id., Listing 3.02B.

In the instant case, the ALJ found that Mertz did not meet the requirements

for listing 3.02. The ALJ explained that the record did not contain FEV1 or FVC

values less than or equal to the values specified in the listing. (Tr. 13). Mertz was 48

years old at the time of her alleged onset of disability, and she measured at 62 inches

tall. Accordingly, in order to meeting listing 3.02A, Mertz’s FEV1 levels would have

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had to be less than or equal to 1.15 L. In order to meeting listing 3.02B, her FVC

levels would have to have been less than or equal to 1.40 L.

Mertz submitted the results of two pulmonary function tests—one in

September of 2020 and one in March of 2021. She contends that because her

September 2020 results showed an FEV1 of 0.90, she meets listing 3.02A. However,

this contention ignores the fact that Mertz’s March 2021 pulmonary function test

results showed FEV1 and FVC levels above the required listing range. Indeed, in this

March 2021 test, Mertz’s best pre-bronchodilator FEV1 levels were measured at 1.33

L and her post-bronchodilator levels measured at 1.67 L, well above the 1.15 L

listing threshold. (Tr. 1343). Similarly, with respect to listing 3.02B, Mertz’s best

FVC levels measured at 2.10 L and 2.36 L, which are well above the 1.40 L threshold

in the listing. (Id.) Accordingly, given that a claimant “must meet all of the specified

medical criteria” in order to meet a listing, Zebley, 493 U.S. at 531, we conclude

that the ALJ’s Step 3 finding that Mertz did not meet listing 3.02 is supported by

substantial evidence. See e.g., Cowley v. Comm’r of Soc. Sec., 2017 WL 4548265,

at *7 (D.N.J. Oct. 12, 2017) (affirming the ALJ’s Step 3 finding where the record

included multiple pulmonary function tests that showed the plaintiff’s levels did not

meet listing 3.02).

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In closing, the ALJ’s assessment of the evidence in this case complied with

the dictates of the law and was supported by substantial evidence. This is all that the

law requires, and all that a claimant can demand in a disability proceeding. Thus,

notwithstanding the argument that this evidence might have been viewed in a way

which would have also supported a different finding, we are obliged to affirm this

ruling once we find that it is “supported by substantial evidence, ‘even [where] this

court acting de novo might have reached a different conclusion.’ ” Monsour Med.

Ctr. v. Heckler, 806 F.2d 1185, 1190–91 (3d Cir. 1986) (quoting Hunter Douglas,

Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential

standard of review that applies to appeals of Social Security disability

determinations, we find that substantial evidence supported the ALJ’s evaluation of

this case.

IV. Conclusion

Accordingly, for the foregoing reasons, the final decision of the

Commissioner denying these claims will be AFFIRMED.

An appropriate order follows.

s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

DATED: February 15, 2023

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