Rowe v. Kijakazi

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

STEPHEN HOWARD ROWE,

Plaintiff, CIVIL ACTION NO. 3:21-cv-01511

v. (SAPORITO, M.J.)

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM

In this matter, the plaintiff, Stephen Howard Rowe, seeks judicial

review of the final decision of the Commissioner of Social Security

denying his claims for disability insurance benefits and supplemental

security income, pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). The

matter has been referred to the undersigned United States magistrate

judge on consent of the parties, pursuant to 28 U.S.C. § 636(c) and Fed.

R. Civ. P. 73.

I. BACKGROUND

On June 24, 2015, Rowe protectively filed a claim for disability

insurance benefits and supplemental security income, asserting a

disability onset date of August 27, 2011. Due to the denial of a prior

disability application, the plaintiff’s effective onset date for disability

insurance benefits is June 19, 2013—the day after the prior application

was adjudicated—and the plaintiff’s effective onset date for supplemental

security income is a protective filing date of June 24, 2015. The date last

insured for disability insurance benefits purposes is December 31, 2016.

Rowe’s claims were initially denied by state agency reviewers on

February 24, 2016. The plaintiff then requested an administrative

hearing.

A hearing was held on December 4, 2017, before an administrative

law judge (“ALJ”), Frank Barletta. In addition to the plaintiff himself,

ALJ Barletta received testimony from an impartial vocational expert,

Gerald W. Keating. The plaintiff was represented by counsel at the

hearing.

On March 8, 2018, ALJ Barletta denied Rowe’s application for

benefits in a written decision. The plaintiff sought further administrative

review of his claims by the Appeals Council. On July 26, 2019, the

Appeals Council vacated the ALJ’s March 2018 decision and remanded

the matter for further proceedings.

A second hearing was held on August 4, 2020, before a different

ALJ, Therese A. Hardiman. In addition to the plaintiff himself, ALJ

Hardiman received testimony from an impartial vocational expert,

Nadine Henzes. The plaintiff was again represented by counsel at this

second hearing.

On September 15, 2020, the ALJ denied Feather’s application for

benefits again in a second written decision. The ALJ followed the familiar

five-step sequential evaluation process in determining that Rowe was not

disabled under the Social Security Act. See generally Myers v. Berryhill,

373 F. Supp. 3d 528, 534 (M.D. Pa. 2019) (describing the five-step

sequential evaluation process). At step one, the ALJ found that Rowe had

not engaged in substantial gainful activity since June 19, 2013, the day

after the decision denying his prior application for benefits. At step two,

the ALJ found that Rowe had the severe impairments of: degenerative

disc and joint disease of the lumbar spine; posttraumatic stress disorder

(“PTSD”); unspecified depressive disorder; unspecified anxiety disorder;

depressive disorder; impulse control disorder; major depressive disorder;

and adjustment disorder.

At step three, the ALJ found that Rowe did not have an impairment

or combination of impairments that meets or medically equals the

severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1 (eff. Apr. 1, 2018).1 In doing so, the ALJ considered Rowe’s

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

disorders, finding moderate limitations in two functional areas—(1)

interacting with others, and (2) concentrating, persisting, or maintaining

pace—finding mild limitations in a third functional area—

understanding, remembering, or applying information—and finding no

limitations at all in the fourth functional area—adapting or managing

oneself. See generally 20 C.F.R. §§ 404.1520a(c), 416.920a(c) (explaining

functional limitation rating process for mental impairments); 20 C.F.R.

pt. 404, subpt. P, app.1, § 12.00(E) (explaining the four areas of mental

functioning); id. § 12.00(F) (explaining process for using paragraph B

criteria to evaluate mental impairments). In connection with listings

12.04, 12.06, and 12.15, the ALJ also considered whether Rowe’s mental

disorders were “serious and persistent,” finding that his impairments

1 We note that the agency’s list of musculoskeletal disorders was

extensively revised effective April 2, 2021, after this plaintiff’s

application for disability and disability benefits was adjudicated by the

agency. See generally Revised Medical Criteria for Evaluating

Musculoskeletal Disorders, 85 Fed. Reg. 78164 (Dec. 3, 2020) (to be

codified at 20 C.F.R. pt. 404, subpt. P, app. 1).

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 his mental disorders, nor that he

had achieved only marginal adjustment as a result. See generally id.

§ 12.00(G) (explaining process for using alternative paragraph C criteria

to evaluate certain mental impairments).

Between steps three and four of the sequential-evaluation process,

the ALJ assessed Rowe’s residual functional capacity (“RFC”). See

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

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

the RFC to perform “medium work” as defined in 20 C.F.R. §§ 404.1567(c)

and 416.967(c),2 with the following limitations:

[T]he claimant is limited to occasional climbing of

stairs and ramps, no climbing of ladders, ropes or

scaffolds, and occasional balancing, stooping, kneeling,

crouching and crawling. The claimant is limited to

frequent reaching in all directions, except no bilateral

overhead reaching. The claimant must avoid

concentrated levels of vibration and hazards, defined

as heights. The claimant is limited to unskilled work

activity as defined in the Dictionary of Occupational

2 The Social Security regulations define “medium work” as a job

that “involves lifting no more than 50 pounds at a time with frequent

lifting or carrying of objects weighting up to 25 pounds.” 20 C.F.R.

§ 404.1567(c); id. § 416.967(c).

Titles (DOT) that is low stress, defined as only

occasional decision making and only occasional

changes in the work setting, with no interaction with

the public.

(Tr. 33.).

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

considered his symptoms and the extent to which they could reasonably

be accepted as consistent with the objective medical evidence and other

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

Ruling 16-3p, 2017 WL 5180304 (revised Oct. 25, 2017). The ALJ also

considered and articulated how he weighed the various medical opinions

in the record. See generally 20 C.F.R. §§ 404.1527, 416.927; Soc. Sec.

Ruling 96-2p, 1996 WL 374188.

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

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

relevant work as a forklift driver, overhead crane operator, paint mixer,

painter, or a dishwasher, as actually or generally performed.

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

performing other work that exists in significant numbers in the national

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

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

Rowe was capable of performing the requirements of representative

occupations such as box maker (DOT # 794.684-014), packer (DOT #

920.587-018), and bagger (DOT # 920.687-014). Based on this finding, the

ALJ concluded that Rowe was not disabled for Social Security purposes.

The plaintiff sought further administrative review of his claims by

the Appeals Council, but his request was denied on July 2, 2021, making

the ALJ’s September 2020 decision the final decision of the Commissioner

subject to judicial review by this court.

The plaintiff timely filed his complaint in this court on September

1, 2021. The Commissioner has filed an answer to the complaint, together

with a certified copy of the administrative record. Both parties have filed

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

II. DISCUSSION

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

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

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

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

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

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

disability insurance benefits and supplemental security income

administrative decisions).

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

substantial evidence because: (1) Rowe was deprived of a constitutionally

valid administrative adjudicatory process because statutory removal

protections afforded to the Commissioner violate the separation of

powers; (2) the ALJ failed to properly evaluate a medical opinion by a

consultative examining psychologist, Karl A. Hoffman, Ph.D.; (3) the ALJ

failed to properly evaluate a medical opnion by a consultative examining

psychologist, Andrew Cole, Psy.D.; and (4) the ALJ failed to include all of

Rowe’s claimed limitations or impairments in the hypothetical posed to a

vocational expert at the administrative hearing.

A. Constitutional Separation of Powers Issue

Citing a recent decision by the Supreme Court of the United States,

Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183

(2020), the plaintiff contends that he was deprived of a constitutionally

valid administrative adjudicatory process because statutory removal

protections afforded to the Commissioner of Social Security violated the

separation of powers.

In Seila Law, the Supreme Court of the United States held that

statutory removal protections afforded to the director of the Consumer

Financial Protection Board (“CFPB”), which provided that the CFPB

director, who serves for a fixed term of five years, 12 U.S.C. § 5491(c)(1),

could be removed only for “inefficiency, neglect of duty, or malfeasance in

office,” id. § 5491(c)(3), violated the separation of powers by insulating

the director from removal by the President. Seila Law, 140 S. Ct. at 2197.

One year later, the Supreme Court applied Seila Law in considering a

similar challenge concerning statutory removal protections afforded to

the director of the Federal Housing Finance Agency (“FHFA”), which

provided that the FHFA director, who serves for a fixed term of five years,

12 U.S.C. § 4512(b)(2), could only be removed “for cause,” id., and held

that this provision violated the separation of powers as well. Collins v.

Yellen, 141 S. Ct. 1761, 1783–84 (2021) (“A straightforward application

of our reasoning in Seila Law dictates the result here.”).

“Applying the holdings in Seila Law and Collins here makes it clear

that the provision for removal of the Commissioner of Social Security, 42

U.S.C. § 902(a)(3), violates the separation of powers.” Stamm v. Kijakazi,

577 F. Supp. 3d 358, 366 (M.D. Pa. 2021). Like the CFPB and the FHFA,

the Social Security Administration is an independent agency led by a

single individual, the Commissioner, who serves a fixed term of six years

and may only be removed by the President for “neglect of duty or

malfeasance in office,” 42 U.S.C. § 902(a)(3). See Collins, 141 S. Ct. at

1784; Seila Law, 140 S. Ct. at 2197; Stamm, 577 F. Supp. 3d at 366; see

also U.S. Dep’t of Justice, Off. of Legal Couns., Constitutionality of the

Commissioner of Social Security’s Tenure Protection, 2021 WL 2981542,

at *7 (July 8, 2021).

The plaintiff argues that he was deprived of a valid administrative

adjudicatory process because, under 42 U.S.C. § 405(b)(1), only the

Commissioner can make findings of fact and issue final decisions as to

benefits eligibility. Because the ALJ’s delegation of authority came from

the Commissioner, the plaintiff argues that it is constitutionally

defective. The plaintiff further argues that the ALJ decided the case

under regulations promulgated by the Commissioner without

constitutional authority to issue those rules.

Although it appears to be clear that the statutory removal

protections afforded to the Commissioner of Social Security violate the

separation of powers, it does not follow that this unconstitutional

removal restriction requires the court to set aside an unfavorable

disability benefits determination by an ALJ. For one thing, a

constitutionally defective statutory removal provision does not render the

Commissioner’s appointment invalid, and thus it does not automatically

void the ALJ’s actions under the Commissioner. Stamm, 577 F. Supp. 3d

at 366–67. As the Supreme Court explained in Collins:

All the officers who headed the FHFA during the time

in question were properly appointed. Although the

statute unconstitutionally limited the President’s

authority to remove the confirmed Directors, there was

no constitutional defect in the statutorily prescribed

method of appointment to that office. As a result, there

is no reason to regard any of the actions taken by the

FHFA in relation to the [administrative action at issue]

as void.

Collins, 141 S. Ct. at 1787. Moreover, the ALJ who denied the plaintiff’s

disability claim was not appointed by a Senate-confirmed Commissioner

who was subject to the removal restriction imposed by § 902(a)(3).

Rather, this ALJ was appointed by an Acting Commissioner who was not

subject to the same statutory removal restriction.3 See Collins, 141 S. Ct.

3 In response to the Supreme Court’s decision in Lucia v. Sec. &

Exch. Comm’n, 138 S. Ct. 2044 (2018), and in light of an executive order

concluding that “at least some—and perhaps all—ALJs are ‘Officers of

the United States’ and thus subject to the Constitution’s Appointments

(continued on next page)

at 1781; Stamm, 577 F. Supp. 3d at 366–67.

Moreover, pursuant to the Supreme Court’s analysis in Collins,

“[r]elief is available in removal challenges only where officials subject to

the challenged removal restrictions cause the alleged injuries, and where

those restrictions themselves caused ‘compensable harm’ upon

plaintiffs.” Stamm, 577 F. Supp. 3d at 368 (citing Collins, 141 S. Ct. at

1789).4 Here, the action challenged by the plaintiff is the ALJ’s decision

denying benefits. The plaintiff has alleged no direct action by the

Clause,” Exec. Order No. 13843, 83 Fed. Reg. 32755 (July 10, 2018), the

Acting Commissioner of Social Security at that time, Nancy Berryhill,

ratified the appointments of all previously appointed ALJs and approved

those appointments as her own on July 16, 2018. See Soc. Sec. Ruling 19-

1p, 2019 WL 1324866, at *2; Cirko ex rel. Cirko v. Comm’r of Soc. Sec.,

948 F.3d 148, 152 (3d Cir. 2020); Charran v. Saul, 509 F. Supp. 3d 80, 87

(D.N.J. 2020).

4 In his reply brief, the plaintiff argues that a presumption of harm

should be read into Collins. (Doc. 24, at 10 (“Collins suggests that harm

should be presumed . . . .”).) We find no such suggestion in Collins.

Indeed, previously in Stamm and now here, we have joined other courts

in finding that Collins suggests the precise opposite: a required showing

that an unconstitutional removal provision inflicted compensable harm.

See Collins, 141 S. Ct. at 1789; Lisa Y. v. Comm’r of Soc. Sec., 570 F.

Supp. 3d 993, 1002–03 (W.D. Wash. 2021) (rejecting the same presumed-

harm argument); Brooks v. Kijakazi, No. 1:21CV609, 2022 WL 2834345,

at *9–*10 (M.D.N.C. July 20, 2022) (same); Robinson v. Kijakazi, Civil

Action No. 1:20-CV-00358-KDB, 2021 WL 4998397, at *3 (W.D.N.C. Oct.

27, 2021) (“The Plaintiff simply argues that all actions taken by the

Commissioner are void due to the unconstitutional removal provision.

However, Collins expressly rejects this view.”).

Commissioner at the time, Andrew Saul, and no involvement in the ALJ’s

decision by the President at the time, Donald Trump. See Collins, 141 S.

Ct. at 1802 (Kagan, J., concurring) (“When an agency decision would not

capture a President’s attention, his removal authority could not make a

difference.”); Stamm, 577 F. Supp. 3d at 368. The plaintiff cannot show

how the President’s supposed inability to remove a Senate-confirmed

commissioner without cause might have affected any ALJ’s disability

benefits decision, much less the decision on the plaintiff’s specific claim.

See Stamm, 577 F. Supp. 3d at 368. As this court has previously

explained:

The ALJ’s decision was based upon an uncontested

factual record and the application of established law,

including case law, which generally cannot be changed

by the Commissioner. There is no allegation suggesting

a direct nexus between the adjudication of [the

plaintiff’s] disability claim by the ALJ and the alleged

separation of powers violation in the removal statute

that applies to the Commissioner. [The plaintiff’s]

allegations merely express general dissatisfaction with

the outcome of the adjudication of his [social security]

disability claim.

Id.

Accordingly, while the removal-limitation clause in § 902(a)(3)

violates the separation of powers, it does not independently require the

court to reverse an ALJ’s decision absent a showing of compensable harm,

which has not been made in this case.

B. State Agency Medical Consultant Opinions

The plaintiff contends that the ALJ erred in his evaluation of the

medical opinions provided by two consultative examining psychologists,

Karl A. Hoffman, Ph.D., and Andrew Cole, Psy.D.

When a non-treating medical source provides a medical opinion, the

ALJ is required to consider it and decide what weight to give to it. See 20

C.F.R. §§ 404.1527(c), 416.927(c). The following factors must be

considered to determine the appropriate weight to which the opinion is

entitled: (1) the length of treatment and frequency of examination; (2) the

nature and extent of the treatment relationship; (3) the opinion’s support

by medical evidence; (4) the opinion’s consistency with the record as a

whole; and (5) the treating physician’s specialization. 20 C.F.R.

§§ 404.1527(c)(2)–(5), 416.927(c)(2)–(5). None of these factors may be

omitted or disregarded by the ALJ in considering the weight of the

opinion. See Casillas v. Astrue, 671 F. Supp. 2d 635, 643–44 (E.D. Pa.

2009) (stating that the ALJ “must consider” the factors set forth in 20

C.F.R. § 404.1527(c) in determining what weight to give a medical

opinion); Waldron v. Astrue, No. 1:07-CV-2040, 2008 WL 4452350, at *1

(M.D. Pa. Sept. 30, 2008) (same). In addition, the ALJ must consider any

other factors that tend to support or contradict the opinion, but only if

brought to his or her attention. 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6).

The ALJ clearly considered Dr. Hoffman’s May 2013 opinion,

reviewing his findings in great detail. (Tr. 40.) Ultimately, the ALJ found

Dr. Hoffman’s opinion to be entitled only to “some weight.” (Id.) In

support, the ALJ stated:

Overall, the undersigned affords this opinion only some

weight and finds that it is only somewhat persuasive

because it is not consistent with the overall record,

including Dr. Hoffman’s own observations upon

examination of the claimant. Specifically, although Dr.

Hoffman noted that claimant to have superficial

insight and poor judgment under the circumstances of

stress or complexity, he did not note any observations

that would substantiate a moderate limitation in the

claimant’s ability to make work-related decisions.

Conversely, Dr. Cole noted that the claimant had fair

judgment and that he was only mildly impaired in that

regard. Additionally, Dr. Hoffman opined that the

claimant had a marked limitation in interacting with

the public and with coworkers and a marked-to-

moderate limitation in interacting with supervisors;

however, apart from noting the claimant simply

exhibited superficial insight, psychomotor agitations,

and at least one instance of pressure of speech, he

provided no other evidence to support these

limitations. Additionally, the claimant reported that

while he does not usually associate with others, he gets

along “good” with his fiancé and six children, goes to

church on a regular basis, and takes his children

places, such as doctor’s appointments. These reported

activities in conjunction with the overall benign

findings on mental status examination do not reflect

anything more than a moderate limitation in

interacting with others. Additionally, the marked

limitations to interaction with the public and moderate

limitations with co-workers and moderate to marked

limitations with supervisors are not supported by

actual signs and laboratory findings, but instead the

doctor relies upon the self-reported subjective

limitations of the claimant. The doctor is not a treating

source and [saw] the claimant once. He relied upon the

self-reporting of the claimant and not upon . . . any

longitudinal treatment relationship, and there is no

evidence reported by the doctor that he relied upon any

actual evidence from any other medical source in

reaching these conclusions. As such, this portion of the

opinion is not very persuasive. The balance of the

opinion remains well supported and consistent with

the doctor’s own findings and the longitudinal evidence

of record and has been considered in formulating the

limitations in the RFC. The undersigned notes that the

record[,] giving every benefit to the claimant[,]

support[s] no[] social limitations greater than limiting

his social interaction with he public. The claimant’s

records do not reflect any interaction problems with his

providers or other[wise] document any significant

interaction problems in work related activities.

Nevertheless, in accommodating the claimant’s alleged

report that he does not associate with others, the

undersigned has limited the claimant to no interaction

with the public in the above noted residential

functional capacity along with limiting him to

unskilled work as defined by the DOT that is low

stress, defined as only occasional decision making and

occasional changes in the work setting.

(Tr. 40 (citations omitted).)

In determining the amount of weight to give Dr. Hoffman’s opinion,

the ALJ here clearly articulated her consideration of factors (1) and (2),

expressly describing Dr. Hoffman as a “consultative examiner” (Tr. 40)

who conducted a single “consultative examination” of Rowe (Tr. 38). With

respect to factors (3) and (4), the ALJ’s decision clearly documents her

consideration of the opinion’s lack of support by medical evidence, and its

inconsistency with the record as a whole. (Id.) There is no apparent

indication in the record of Dr. Hoffman’s medical specialization beyond

psychology. No additional factors appear to have been brought to the

ALJ’s attention for consideration.

The ALJ likewise clearly considered Dr. Cole’s November 2015

opinion, reviewing Cole’s findings in great detail as well. (Tr. 41–42.)

Ultimately, the ALJ found Dr. Cole’s opinion to be entitled only to “some

weight.” (Id.) In support, the ALJ stated:

[T]he undersigned has considered the opinion of Dr.

Andrew Cole, a consultative examiner, from November

of 2015, who opined that the claimant had a moderate

limitation in understanding, remembering, and

carrying out complex instructions and making complex

work-related decisions and mild limitation in his

ability to understand, remember, and carry out simple

instructions and make simple work-related decisions.

Dr. Cole also opined that the claimant had moderate to

marked limitations in interacting with the public and

coworkers and a moderate limitation in interacting

with supervisors. The undersigned gives this opinion

some weight and finds it is somewhat persuasive. The

mild to moderate limitations for instructions and

decision making are consistent with and supported by

the record, and have been accounted for in the above

“paragraph B” findings and in the residual functional

capacity, which limits the claimant to unskilled work

as defined by the DOT that is low stress, defined as

occasional decision making and occasional changes in

the work setting. However, the moderate limitations

for interacting with supervisors and coworkers and the

marked limitations for interacting with the public are

not supported by or consistent with the record. Dr. Cole

noted that the claimant had fair judgment and that he

was only mildly impaired in that regard. Additionally,

Dr. Hoffman opined that the claimant had marked

limitation in interacting with the public and with

coworkers and a marked-to-moderate limitation in

interacting with supervisors; however, apart from

noting the claimant simply exhibited superficial

insight, psychomotor agitations, and at least one

instance of pressure of speech, he provided no other

evidence to support these limitations. Additionally, the

claimant reported that while he does not usually

associate with others, he gets along “good” with his

fiancé and six children, goes to church on a regular

basis, and takes his children places, such as doctor’s

appointments. These reported activities in conjunction

with the overall benign findings on mental status

examination do not reflect anything more than a

moderate limitation in interacting with others.

Additionally, the marked limitations to interaction

with the public and moderate limitations with co-

workers and moderate limitations with supervisors are

not supported with actual signs and laboratory

findings, but instead the doctor relies upon the self-

reported subjective limitations of the claimant,

including “dysphoria/anxiety, memory, concentration

problems, distrustful of people” despite an examination

noting the claimant had intact attention,

concentration, and memory. Additionally, Dr. Cole is

not a treating source and examined the claimant one

time only. He relied upon the self-reporting of the

claimant and not upon any longitudinal treatment

relationship. Of note, the claimant’s treating providers

consistently noted the claimant was cooperative with

good eye contact and coherent and goal-directed

thought processes, which certainly are not findings

indicative of any marked limitation. As such, this

portion of the opinion is not very persuasive. . . .

(Tr. 41–42 (citations omitted).)

In determining the amount of weight to give Dr. Cole’s opinion, the

ALJ here clearly articulated her consideration of factors (1) and (2),

expressly describing Dr. Cole as a “consultative examiner” (Tr. 41) who

“is not a treating source and examined the claimant one time only.” (Tr.

41–42). With respect to factors (3) and (4), the ALJ’s decision clearly

documents her consideration of the opinion’s lack of support by medical

evidence, and its inconsistency with the record as a whole. (Id.) There is

no apparent indication in the record of Dr. Cole’s medical specialization

beyond psychology. No additional factors appear to have been brought to

the ALJ’s attention for consideration.

Accordingly, the Court finds that there is substantial evidence in

the administrative record to support the ALJ’s findings that the opinions

of the consultative examining psychologists, Dr. Hoffman and Dr. Cole,

were entitled to “some weight,” and that her determination of the weight

given to them was adequately explained and otherwise based upon a

correct application of relevant law.

C. Vocational Expert Hypothetical Question

The plaintiff contends that the ALJ’s step-five determination is not

supported by substantial evidence because the ALJ failed to include all

of Rowe’s claimed limitations or impairments in the hypothetical posed

to a vocational expert at the administrative hearing.

It is well settled, however, that a hypothetical question posed to a

vocational expert need only account for credibly established limitations

or impairments. See Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.

2005). Here, the ALJ explicitly considered and addressed the plaintiff’s

severe and medically determinable non-severe impairments, his

subjective complaints of pain and other symptoms, and the various

medical opinions in the record. The hypothetical posed to the vocational

expert included all limitations or impairments the ALJ had found

credible. In light of all the evidence, and the ALJ’s reasoned consideration

of it, we find no error in the ALJ’s conclusions with respect to the

plaintiff’s functional limitations or impairments.

III. CONCLUSION

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

finding that Rowe 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: March 31, 2023 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge