Avvisato v. Kijakazi

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ASHLEIGH AVVISATO, : Civil No. 1:23-CV-185

:

Plaintiff, :

:

v. : (Magistrate Judge Carlson)

:

MARTIN O’MALLEY, :

Commissioner of Social Security :

:

Defendant. :

MEMORANDUM OPINION

I. Introduction

In 2019, Ashleigh Avvisato was on the threshold of her work life. At age 18,

Avvisato was enrolled in college, studying graphic design. She maintained a strong

grade point average, lived independently at college with some housing

accommodations, exercised, was a DJ for college radio station, and traveled to

Florida, New York, New Jersey, and France, albeit all with some assistance and

accommodations.

Nonetheless, on August 16, 2019, Avvisato applied for disability benefits,

asserting that she was completely and totally disabled due to the combined effects

of an anxiety disorder, psychological conversion disorder, social phobia, congenital

anteversion of her femur, and ataxia, a neurological condition which results in

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impaired balance and coordination. In the course of agency proceedings, six

different medical experts examined Avvisato’s treatment records, medical history,

and activities of daily living. Five of these six medical experts determined based

upon this evaluation that Avvisato retained the ability to perform some work

notwithstanding her emotional and physical impairments. The sole outlying medical

source, Dr. Sallavanti, was a treating physician who opined that Avvisato was

wholly disabled.

Upon consideration, the Administrative Law Judge (ALJ) assigned to

Avvisato’s case concluded, consistent with the medical opinion consensus and

Avvisato’s self-reported activities of daily living, that the plaintiff retained the

ability to do some work. Avvisato has now appealed this agency determination,

arguing that the ALJ erred as a matter of law in failing to adopt the extreme view of

her disability expressed by Dr. Sallavanti.

In considering this claim we are reminded that 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

2

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)

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

erroneous standard).

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

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 denying

this claim.

II. Statement of Facts and of the Case

A. Background

The administrative record of Avvisato’s disability application reveals the

following essential facts: On August 16, 2019, Ashleigh Avvisato filed an

application for supplemental security income, alleging disability beginning May 18,

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2001. (Tr. 32). According to Avvisato, she was completely disabled due to the

combined effects of a series of physical and emotional impairments, including an

anxiety disorder, psychological conversion disorder, social phobia, congenital

anteversion of her femur, and ataxia, a neurological condition which results in

impaired balance and coordination. (Tr. 34-35). Avvisato was 18 years old at the

time of the alleged onset of her disability, making her a younger worker under the

Commissioner’s regulations. (Tr. 45). She had a high school education and was

enrolled in college but had no prior work experience. (Id.)

B. Avvisato’s Clinical Record

With respect to Avvisato’s reported impairments, the clinical record was

equivocal and contradictory in some respects, but contained substantial evidence

indicating that Avvisato could perform some work. On this score, the ALJ observed

that:

The record shows the claimant was diagnosed with a congenital

anteversion of the femur and that when she was younger, her foot was

turned inward (Exhibit 5F). [T]he record shows she has some gait

abnormality, but notes she walks around campus, uses an elliptical to

exercise, and while she sometimes trips, she reports that she never

fallen [sic] (Exhibit 15F/p. 9-10). The claimant is diagnosed with

anxiety state, social phobia, and conversion disorder. The record shows

she has been treating with Dr. Berger since 2017, but her visits were

reduced due to her being away at college. In January 2020, she was

home from college and was seen by Dr. Berger’s office. She reported

that she was doing good, and her anxiety had been stable with a few

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flare ups when dealing with a difficult roommate (Exhibit 9F/p. 5). She

was noted to be cooperative and pleasant, she had good eye contact, her

speech was soft and coherent, and her affect was appropriate and shy.

Her thought processes were coherent and logical, her memory was

intact, attention and concentration were normal, her judgment was

intact, and insight was appropriate (Exhibit 9F/p. 7).

In a telephone visit in May 2020, she reported she finished off the

school year online, and her anxiety was a little higher due to the

pandemic, but she was doing well overall (Exhibit 9F/p. 1). All her

future appointments were by telephone due to the COVID 19 pandemic.

In November 2020, she reported that she was doing good (Exhibit

16F/p.5). She stated that she was in college, her grades were good,

anxiety was controlled with medication with some flare ups where her

mother reported that the claimant takes ¼ tablet of Klonopin (Exhibit

16F/p. 5). The claimant reported that she was involved with the school’s

radio as a DJ, and she enjoyed playing her music. Dr. Berger noted that

her mental status exam findings showed she was alert and oriented, her

speech was coherent and soft with no aphasia while speaking, and her

thought processes were coherent and logical. Dr. Berger stated that her

memory was intact, her attention and concentration were normal, and

her judgment and insight were intact (Exhibit 16F/p. 7).

When she had a follow-up telephone visit in May 2021, the claimant

reported she was good, that she did very well in school, her anxiety was

under control and she had no panic attacks. Dr. Berger found her mental

status exam findings to be the same as her November 2020 visit

(Exhibit 16F/p. 3). The claimant reported that she was seeing a therapist

on a monthly basis at some point but as of December 2019, she reported

she sees her therapist every four months because she does not feel she

needs a therapist (Exhibit 4F/p. 10).

The undersigned received a completed medical interrogatory from

Natalie Litvinsky, MD (Exhibit 19F). Dr. Litvinsky noted that the

claimant did not meet or equal a listing as there is no evidence that the

claimant has a neurologic disorder. Dr. Litvinsky noted that the

claimant follows with neurology for tremors and abnormal gait, she had

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extensive workups, has seen multiple specialists and no etiology was

found. Dr. Litvinsky stated that a diagnosis of conversion disorder is

considered (Exhibit 5F/p. 42, 46, 52; 15F/p. 5). Dr. Litvinsky stated that

her exam has functional findings and inconsistencies, and there are also

contradictions in the history, such as endorsing struggling with standing

and walking but doing light jogging (Exhibit 12F/p. 2; 15F/p. 4, 7). Dr.

Litvinsky noted the claimant’s MRI of the brain shows diffuse

cerebellar atrophy and an arachnoid cyst, and Dr. Litvinsky stated that

neither finding explains the claimant’s symptoms.

The undersigned notes the treatment records from the claimant’s

primary care physician, Kathryn Sallavanti, DO, and from neurology at

the Children’s Hospital of Philadelphia (CHOP), are largely

inconsistent. Dr. Sallavanti opines that the claimant has significant

difficulty with writing, typing, daily activities, walking, sitting and

standing. Dr. Sallavanti stated that the claimant’s conditions, physical

and mental, have deteriorated (Exhibit 8F). Dr. Sallavanti stated the

claimant must use a cane for stability, her speech is affected, and she

has difficulty with social interaction (Exhibit 8F/p. 3). Dr. Sallavanti

stated that the physical exam findings show muscle weakness, 3/5 upper

extremity proximal and distal strength, and lower extremity weakness

making her unable to balance on one leg (Exhibit 8F/p. 4).

However, the treatment notes at CHOP show that while the claimant

does have some difficulty with her gait, her tremors are noted to be

intermittent, and her motor strength is noted to be normal 5/5

throughout. The CHOP records further reflect that the claimant walks

all over campus and feels it has helped her a lot, exercises and uses the

elliptical machine and started doing some light jogging. They also

indicate that she uses a computer for school without difficulty, she types

well, her handwriting is difficult, she struggles with drawings but is

excellent with stuff on the computer, she is majoring in graphic design,

she works as a DJ at her college radio station, and she reports no

problems with fine motor skills. She noted that she struggles with

standing and walking and that she has a wide stance when she stands.

She stated that she does not have any issues with falling but does better

when using a cane for support like when she went to New York. She

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reports she has no problems with anxiety as it is controlled since she is

on Buspar. Her MRI of the brain shows overall stable cerebellar atrophy

(Exhibit 15F). Her physical exam findings at the CHOP are mostly

normal with normal motor strength, normal muscle tone and bulk, some

gait abnormalities, and some intermittent trembling of her body

(Exhibit 15F/p. 7). The record notes that Benzodiazepines have been

the only medication that has been helpful in controlling her tremors and

ataxia, and that for the past 2-3 years she has been relatively stable

(Exhibit 15F/p. 8). She declined to have genetic testing done to help

understand the etiology of her ataxia and tremors.

Overall, the longitudinal evidence of record does not support the

claimant’s allegations concerning the intensity, persistence, and

limiting effects of his symptoms. She complains of tremors and an

abnormal gait and alleged it had worsened over the years. She has

attended physical therapy, been evaluated by neurology and noted that

the ataxia and tremors are exacerbated by anxiety and fatigue. She is

diagnosed with anxiety, social phobia and conversion disorder and the

record notes that when she is out of stressful situations, her tremors stop

(Exhibit 15F/p. 10). Since beginning treatment with Dr. Berger, the

claimant reports she is doing good, her anxiety is under control with

medication, and she only has to use a ¼ tablet of Klonopin if she feels

a flare up. Her mental status exam findings are relatively benign

showing she is alert and oriented, her speech is coherent and soft with

no aphasia while speaking, and her thought processes are coherent and

logical. Her memory is intact, her attention and concentration are

normal, and her judgment and insight are intact.

.

(Tr. 40-42).

C. Avvisato’s Self-Reported Activities of Daily Living

Likewise, Avvisato’s self-reported activities of daily living suggested that she

retained the capacity to perform some work. According to the ALJ:

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[Avvisato] manages her own personal care, lives independently at

college, prepares simple meals using the microwave, does laundry, uses

a computer, exercises, is a DJ for college radio station, goes to school

full time, and traveled to Florida, New York, New Jersey, and France,

albeit all with limitations (Exhibit 5E, 8E, Hearing Testimony). While

none of these activities alone is dispositive, taken together they suggest

that the claimant is capable of performing work activity on a sustained

and continuous basis within the above parameters. The record supports

the unskilled sedentary residual functional capacity. This level of

activity is not consistent with someone alleging such severe and

debilitating symptomatology.

(Tr. 42).

D. The Expert Opinion Evidence

Given this clinical picture, and Avvisato’s self-reported activities of daily

living, six different medical experts opined regarding whether Avvisato’s

impairments were disabling. Five of these six medical experts determined based

upon this evaluation that Avvisato retained the ability to perform some work

notwithstanding her emotional and physical impairments.

With respect to her emotional conditions, two state agency experts opined that

Avvisato retained the ability to work and faced only mild to moderate impairments.

First, on November 7, 2019, Dr. Melissa Franks found that Avvisato was mildly

impaired in her ability to adapt to the workplace and understand instructions and

experienced only a moderate degree of impairment with respect to concentration and

interacting with others. (Tr. 87). Dr. Franks also found that Avvisato was not

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significantly impaired in multiple spheres of workplace activity. (Tr. 92-93). Dr.

Arlene Rattan reached similar conclusions in October of 2020 following a

reconsideration of Avvisato’s disability claim. (Tr. 107-09).

Two state agency experts also opined that Avvisato retained the physical

capacity to perform some work. At the outset, on November 7, 2019, Dr. Louis

Bonita opined that Avvisato could perform light work notwithstanding her physical

limitations. (Tr. 89-91). Upon reconsideration in October of 2020 Dr. Kurt Maas

concluded that Avvisato was somewhat more restricted physically but found that she

retained the ability to perform a limited range of light or sedentary work. (Tr. 104-

09). Dr. Natalie Litvinsky, an independent expert, also responded to interrogatories

posed by the ALJ on September 15, 2021. (Tr. 968-77). Dr. Litvinsky also found

that Avvisato retained the ability to work despite her physical and emotional

impairments. (Id.)

In stark contrast to this medical consensus, one treating physician, Dr.

Kathleen Sallavanti, stated in November of 2019 that Avvisato’s impairments were

totally disabling. (Tr. 838-44).

It was against this backdrop that Avvisato’s disability claim came to be heard

by the ALJ.

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E. The ALJ Decision

On July 20, 2021, the ALJ conducted a hearing in Avvisato’s case, at which

the plaintiff, her father and a vocational expert testified. (Tr. 52-83). Following the

hearing, on October 28, 2021, the ALJ issued a decision denying Avvisato’s claim.

(Tr. 29-46). In that decision, the ALJ first concluded that Avvisato had not engaged

in substantial gainful activity since August 16, 2019, the application date. (Tr. 34).

At Step 2 of the sequential analysis that governs Social Security cases, the ALJ found

that Avvisato had the following severe impairments: unspecified anxiety disorder,

psychological conversion disorder, social phobia unspecified, and congenital

anteversion of femur. (Id.)

The ALJ determined that Avvisato’s ataxia was not a severe impairment,

noting that:

[T]he claimant has the following non-severe impairments of cerebral

atrophy, ataxia due to cerebral atrophy, tremor, myoclonus, and lack of

coordination (Exhibit 15F). The record notes she has stable diffuse

cerebellar atrophy without associated brainstem abnormality (Exhibit

15F/p. 7). Dr. Natalie Litvinsky, a board-certified neurologist who

reviewed the record, stated that: “The claimant follows with neurology

for tremor and abnormal gait (15F p. 4). She had extensive workup (15F

p. 7) and has seen multiple specialists and no etiology was found.”

(Exhibit 19F, p. 1). Dr. Litvinsky suggested considering a diagnosis of

conversion disorder (Exhibit 19F/p. 1). She further opined that, “There

is no evidence that the claimant has a neurologic disorder. Her exam

and functional findings and inconsistencies (15F p. 7, 12F p. 2). There

are also contraindications in the history, such as endorsing struggling

10

with standing and walking but doing light jogging (15f p. 4). The

claimant’s brain MRI showing diffuse cerebellar atrophy and an

arachnoid cyst does not explain her symptoms.” (Exhibit 19f/p. 2).

The record does not demonstrate that any of these conditions cause any

significant functional limitations or that they have lasted or are

expected to last 12 months or more. Therefore, the undersigned finds

that these impairments have no more than a minimal effect on the

ability to do basic work activities and are considered “non-severe”. The

undersigned has reviewed and considered all severe and non-severe

impairments when formulating the following residual functional

capacity and, where appropriate has included limitations to address the

claimant’s non-severe impairments or subjective complaints.

(Tr. 35). In fact, the ALJ’s decision, read as a whole, reveals that Avvisato’s ataxia

was considered throughout the RFC analysis. (Tr. 39-45).

At Step 3, the ALJ determined that Avvisato did not have an impairment or

combination of impairments that met or medically equaled the severity of one of the

disability listing impairments. (Tr. 35-38). Between Steps 3 and 4, the ALJ then

fashioned a residual functional capacity (“RFC”) for the plaintiff which considered

all of Avvisato’s impairments as reflected in the medical record, and found that:

After careful consideration of the entire record, the undersigned finds

that the claimant has the residual functional capacity (RFC) to perform

sedentary work as defined in 20 CFR 416.967(b) except she is limited

to occupations that require no more than occasional postural

maneuvers, such as balancing, stooping, or kneeling, crouching, or

crawling and climbing on ramps and stairs, but she must avoid

occupations that require climbing on ladders, ropes and scaffolds. She

must avoid occupations that require pushing or pulling with the lower

extremities to include the operation of pedals. She must avoid

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occupations that require pushing and pulling with the upper extremities

to include the operation of hand levers. She is limited to occupations

which do not require exposure to hazards such as dangerous machinery

and unprotected heights or driving as part of the job duties. She is

limited to simple routine repetitive work, generally described as

unskilled, with no more than a specific vocational preparation (SVP) of

two and that is low stress, defined as only occasional decision making

required and only occasional changes in the work setting. She is limited

to occupations which require no more than occasional interaction with

supervisors and coworkers and no interaction with members of the

general public.

(Tr. 38-39).

In fashioning this RFC, the ALJ considered the clinical evidence, medical

opinions and Avvisato’s activities of daily living. (Tr. 39-45). Further, in fashioning

the RFC, the ALJ considered the medical opinions and prior administrative medical

findings. In this regard, the ALJ concluded that the medical consensus that Avvisato

could perform some work was more persuasive that Dr. Sallavanti’s extreme

opinion, but limited Avvisato to sedentary work in a low stress work environment.

As for Dr. Sallavanti’s outlier opinion, the ALJ provided the following cogent

analysis of this opinion:

The undersigned also considered the two opinions from Dr. Sallavanti

(Exhibit 8F). In a treatment note, Dr. Sallavanti opined that the claimant

will limit her driving because of her tremors and will use a cane for

safety due to fall risk (Exhibit 8F/p. 4). The record further states the

claimant has not been able to cook on a stove or carry hot items due to

safety. Dr. Sallavanti stated that she agrees the claimant is not able to

work but may carry a modified school schedule. The undersigned finds

12

this opinion is not persuasive. There is no full functional analysis but

rather a statement the claimant cannot work, a decision reserved to the

Commissioner. Regarding the portion where the doctor agreed to limit

the claimant’s driving and to use a cane for safety, it appears to be based

at least in part of the claimant’s self-report that she could not cook or

carry hot items for safety reasons. More importantly, it is not persuasive

for the same reasons that there is no support for another opinion from

Dr. Sallavanti in a medical source statement dated November 26, 2019,

wherein Dr. Sallavanti opined that the claimant cannot sustain full time

work (Exhibit 8F/p. 6-12). In Dr. Sallavanti’s Physical Residual

Functional Capacity Assessment, she opined, among other unsupported

limitations, that the claimant could work less than two hours in an eight-

hour-day, needed a cane to ambulate, and needed to alternate between

sitting and standing. Dr. Sallavanti’s opinions are complete

underestimates of the claimant’s abilities and not consistent with the

claimant’s treatment notes from neurology at CHOP as previously

discussed. Additionally, as Dr. Litvinsky noted, the claimant follows

with neurology for tremors and abnormal gait, had extensive workups,

and has seen multiple specialists but no etiology was found. Dr.

Litvinsky also pointed out that a diagnosis of conversion disorder is

considered (Exhibit 5F/p. 42, 46, 52; 15F/p. 5). The claimant reported

that when she is out of stressful situations, her tremors stop (Exhibit

15F/p. 10). She manages her own personal care, lives independently at

college, does laundry, uses a computer, exercises, is a DJ for college

radio station, goes to school full time, and traveled to Florida, New

York, New Jersey, and France, albeit all with limitations (Exhibit 5E,

Hearing Testimony). The undersigned notes that the RFC gives the

claimant every benefit of the doubt regarding hazards and driving. The

record supports that she could perform sedentary work as outlined in

the RFC assessment above.

(Tr. 44).

Having arrived at this RFC assessment, the ALJ concluded that there were

jobs that existed in the significant numbers in the national economy that Avvisato

13

could perform and found that Avvisato had not met the exacting standard necessary

to secure Social Security benefits. (Tr. 45-46).

This appeal followed. (Doc. 1). On appeal, Avvisato argues that the ALJ erred

in failing to give controlling weight to Dr. Sallavanti’s treating source opinion. This

appeal is fully briefed and is, therefore, rip, 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

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

14

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

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)

15

(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 he 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

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.

16

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.

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

17

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

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).

18

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)

(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

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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

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

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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

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.

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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 Opinion

Evidence

The plaintiff filed this disability application 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, in March of 2017, the

Commissioner’s regulations governing medical opinions changed in a number of

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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

“supportability,” the new regulations provide that “[t]he more relevant

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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. 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

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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 Avvisato retained the residual

functional capacity to perform sedentary, simple, and routine work with the

additional articulated limitations. Therefore, we will affirm this decision.

In this single-issue case involving the ALJ’s rejection of a treating source

opinion, we note that our review is cabined by the Social Security regulations’

evolving standards regarding the evaluation of medical opinion evidence. As we

have noted, after the paradigm shift in in the manner in which medical opinions are

evaluated when assessing Social Security claims, “[t]he two ‘most important factors

for determining the persuasiveness of medical opinions are consistency and

supportability,’ [ ] [and] [a]n ALJ is specifically required to ‘explain how [he or she]

considered the supportability and consistency factors’ for a medical opinion.”

Andrew G. v. Comm'r of Soc. Sec. at *5 (citing 20 C.F.R. §§ 404.1520c (b)(2),

416.920c(b)(2)). But ultimately, provided that the decision is accompanied by an

adequate, articulated rationale, examining these factors, it is the province and the

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duty of the ALJ to choose which medical opinions and evidence deserve greater

weight. Moreover, “[t]he presence of evidence in the record that supports a contrary

conclusion does not undermine the Commissioner's decision so long as the record

provides substantial support for that decision.” Malloy v. Comm'r of Soc. Sec., 306

F. App'x 761, 764 (3d Cir. 2009). Thus, our inquiry is not whether evidence existed

from which the ALJ could have drawn a contrary conclusion, but rather whether

substantial evidence existed in the record to support the ALJ’s decision to credit or

discredit each medical opinion, and whether the ALJ appropriately articulated his

decision under the regulations.

Judged against these standards Avvisato’s argument that we must afford

controlling weight to the treating source opinion of Dr. Sallavanti fails for at least

two reasons. First, to the extent that Avvisato relies upon the so-called treating

source rule which in some instances compelled that a treating source opinion be

given controlling weight, we are constrained to note that in 2017 the Commissioner

expressly abandoned this treating source rule in favor of a more holistic analysis

grounded upon consideration of the persuasiveness of all medical opinions. See

Stamm v. Kijakazi, 577 F. Supp. 3d 358, 370 (M.D. Pa. 2021). Therefore, as a legal

matter, Avvisato’s reliance upon the now defunct treating source opinion rule is

misplaced.

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In addition, as a factual matter substantial evidence supported the ALJ’s

determination that Dr. Sallavanti’s opinion lacked persuasive power. On this score,

the ALJ may discount such an opinion when it conflicts with other objective tests or

examination results. Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 202–03 (3d Cir.

2008). Likewise, an ALJ may conclude that discrepancies between the treating

source’s medical opinion, and the doctor’s actual treatment notes, justifies giving a

treating source opinion little weight in a disability analysis. Torres v. Barnhart, 139

F. App'x 411, 415 (3d Cir. 2005). Finally, “an opinion from a treating source about

what a claimant can still do which would seem to be well-supported by the objective

findings would not be entitled to controlling weight if there was other substantial

evidence that the claimant engaged in activities that were inconsistent with the

opinion.” Tilton v. Colvin, 184 F. Supp. 3d 135, 145 (M.D. Pa. 2016).

In this case, the ALJ aptly observed that Dr. Sallavanti’s opinion was

inconsistent with the medical opinion consensus and Avvisato’s treatment notes.

Moreover, Avvisato’s self-reported activities of daily living contradicted her claim

of total disability. These were all legitimate factors to take into account when

evaluating the opinion evidence and the ALJ’s finding that Dr. Sallavanti’s opinion

was unpersuasive drew support from substantial evidence in this record.

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

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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 and affirm the decision of the Commissioner.

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: June 24, 2024

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