# Rowe v. Kijakazi

> District Court, M.D. Pennsylvania · March 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10413038

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10413038

## How later opinions describe it (automated extraction)

- 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
- describing the five-step sequential evaluation process
- describing standard of judicial review for social security disability insurance benefits and supplemental security income administrative decisions

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413038. Public record. Not legal advice.