“A single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence.”
How later courts described this case
- “A single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence.”
- “The court may neither reweigh the evidence, nor may we reverse the Secretary merely because we would have decided the claim differently.”
- “The Secretary is entitled to rely not only on what the record says, but also on what it does not say.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LORI ANN SLABON, )
)
Plaintiff, )
)
vs. ) Civil No. 20-20
)
ANDREW M. SAUL, )
Commissioner of Social Security, )
)
Defendant.
ORDER
AND NOW, this 15th day of April, 2021, upon consideration of the parties’ cross-motions
for summary judgment, the Court, upon review of the Commissioner of Social Security’s final
decision denying Plaintiff’s application for a period of disability and disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., finds the Commissioner’s
decision is supported by substantial evidence and will grant Defendant’s motion. See 42 U.S.C.
§ 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153—54 (2019); Jesurum v. Sec’y of U.S. Dep’t
of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Brown v. Bowen, 845 F.2d
1211, 1213 (3d Cir.1988)); Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (“The court
may neither reweigh the evidence, nor may we reverse the Secretary merely because we would
have decided the claim differently.”) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981)).1
1 This case is before the Court a second time, after previously being remanded to
the Administrative Law Judge (“ALJ”) for further consideration of Plaintiff’s disability
insurance benefits claim. Slabon v. Berryhill, No. CV 18-26, 2019 WL 1216389, at *2 (W.D.
Pa. Mar. 14, 2019). When the ALJ considered Plaintiff’s claim a second time, he determined
Plaintiff was not under a disability between March 2, 2013, the alleged onset date, and December
31, 2018, the date she was last insured. (R. 559). Plaintiff asks the Court to reverse that decision
or remand the matter for further administrative proceedings, arguing the ALJ misread and
rejected certain evidence without adequate explanation or examination. (Doc. No. 15, pgs. 12—
16). The Court disagrees and finds that substantial evidence supports the ALJ’s determination,
based on all the evidence presented, of Plaintiff’s non-disability.
The Court reviews the Commissioner’s final decision to determine whether substantial
evidence exists in the record to support it. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir. 1989).
Where the Commissioner’s findings are supported by substantial evidence, they are
“conclusive.” Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is not a
high evidentiary bar—it requires merely “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Biestek, 139 S. Ct. at 1154. However, the presence
of some supportive evidence does not mean the ALJ’s decision is supported by substantial
evidence where the ALJ failed to consider all the evidence, resolve conflicts in evidence, or
explain the basis for giving evidence a certain weight or rejecting it outright. Plummer v. Apfel,
186 F.3d 422, 429 (3d Cir. 1999); Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (“A
single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing evidence.”). Moreover, the ALJ may not reject
certain evidence for “no reason or for the wrong reason.” Plummer, 186 F.3d at 429 (citing
Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)). Having considered Plaintiff’s arguments,
the ALJ’s decision, and the record, all according to the deferential standard of review, the Court
finds the ALJ’s decision is supported by substantial evidence and will grant the Commissioner’s
summary judgment motion.
The evidence at the center of this matter is the same medical opinion evidence that the
ALJ was required to give additional consideration on remand. This medical opinion is an
evaluation form completed by Dr. Saborio, Plaintiff’s primary care physician; it appears in the
record as Exhibit 8F; and it is titled “Physical Treating Medical Source Statement” (R. 505)
(hereinafter referred to as “the evaluation”). In the evaluation, Dr. Saborio provided answers to
fill-in-the-blank style questions about Plaintiff’s diagnoses, symptoms, pain, clinical findings,
etc. (R. 505). Open-ended questions appear at the beginning of the evaluation (“List your
patient’s symptoms”), and later questions are more specific. For example, question fourteen asks
“To what degree can your patient tolerate work stress?” (R. 506). This question is followed by
four possible answers: “[1] Incapable of even ‘low stress’ jobs . . . [2] Capable of low stress jobs
. . . [3] Moderate stress is okay . . . [4] Capable of high stress work.” (R. 506). Responding to
multiple-choice questions such as this one, Dr. Saborio indicated his answer with an “X” or by
circling one of the preset options. (R. 506—08). Responding to the stress-tolerance question
just given as an example, Dr. Saborio placed an “X” next to “Incapable of even ‘low stress’
jobs,” and, next to the follow-up question “Please explain the reasons for your conclusion,”
added “Uncontrolled depression.” (R. 506). That finding—that Plaintiff would be incapable of
even low stress jobs—is one the ALJ failed to consider in the first instance and was directed to
consider upon remand. Slabon, 2019 WL 1216389, at *2.
On remand, the ALJ afforded Dr. Saborio’s stress-tolerance finding little weight, finding
it inconsistent with objective evidence of Plaintiff’s mental health. (R. 556). This time Plaintiff
takes no issue with the ALJ’s treatment of the stress-tolerance finding. However, Plaintiff argues
the ALJ failed to adequately address two other findings in the evaluation. The first is Dr.
Saborio’s answer to question thirteen, “How often during a typical workday is your patient’s
experience of pain or other symptoms severe enough to interfere with attention and
concentration needed to perform even simple work tasks?” (R. 506). Dr. Saborio had five
answers to choose from—never, rarely, occasionally, frequently, and constantly. (R. 506). He
selected “frequently.” (R. 506). The second finding at issue is Dr. Saborio’s prediction of
Plaintiff’s number of absences per month. (R. 508). Dr. Saborio marked an “X” next to “More
than four days per month.” (R. 508). The ALJ explicitly considered these two findings in his
decision, but afforded them “little weight,” because they were “not consistent with the overall
objective findings showing deficits of mood and affect but no lasting deficits . . . of hygiene,
dress, psychomotor activity, speech, thought process, suicidal ideation, memory, attention,
concentration, orientation, or insight and judgment.” (R. 556). He further found they were not
consistent with Plaintiff’s “mental health treatment history” which he had “discussed in detail”
earlier in the decision. (R. 556). Plaintiff argues the ALJ erred insofar as he only considered her
mental health record and treatment history, but not her physical pain and evidence thereof to the
extent it could have resulted in attention and concentration limitations (“off-task time”) and an
absence limitation. (Doc. No. 15, pgs. 14—15) (arguing the ALJ “failed to explain why he
believed Dr. Saborio’s opinion as to Plaintiff’s ability to maintain attention and concentration for
even simple work tasks and monthly absences was solely related to her mental health
impairments and symptoms.”).
The primary thrust of Plaintiff’s argument can be surmised thus: Plaintiff believes Dr.
Saborio’s findings regarding Plaintiff’s off-task time and absences should have been informed by
both Plaintiff’s mental and physical health but was only informed by the former. Plaintiff calls
this “misreading” damaging “because it caused [the ALJ] not to consider any of the findings
related to Plaintiff’s physical impairment,” such as Plaintiff’s chronic pain. (Doc. No. 15, pg.
15). Plaintiff further complains the ALJ implicitly rejected, without explanation, evidence in the
record of her physical condition that would have supported Dr. Saborio’s findings. The Court is
unpersuaded. It is evident to the Court that the ALJ compared Dr. Saborio’s findings to
Plaintiff’s mental health records because the evaluation focused on Plaintiff’s mental health. As
noted above, the first page of the evaluation provides fields for, inter alia, diagnoses, prognosis,
symptoms, pain levels, clinical findings, treatment, and anticipated duration of impairments. (R.
505). Although Dr. Saborio was Plaintiff’s primary care physician and treated her physical
conditions, for this evaluation, under “Diagnoses,” he listed only “Depression.” (R. 505). For
symptoms—“including pain”—he wrote “Depressed, not enjoying activities.” (R. 505). He
identified clinical findings and objective signs as “Depression. [N]ot enjoying activities.” (R.
505). Zoloft and Bupropion (antidepressants) were the only identified treatments. (R. 505). He
responded “N/A” to the following prompt: “If your patient has pain, characterize the nature,
location, frequency, precipitating factors, and severity of your patient’s pain.” (R. 505). It was
in this context that Dr. Saborio found Plaintiff’s “pain or other symptoms” would frequently
interfere with attention and concentration necessary for simple work. (R. 506) (emphasis added).
Given Dr. Saborio’s focus on the effect of Plaintiff’s depression on her abilities, it was
appropriate for the ALJ to compare Dr. Saborio’s findings to objective evidence of Plaintiff’s
mental health condition.
The presence of several questions on the evaluation form that contemplate physical
limitations, e.g., how often Plaintiff might need to change positions at a job, do not undermine
the Court’s conclusion that the ALJ was reasonable to find Plaintiff’s mental health record
outweighed the findings in the evaluation. The questions on the evaluation that implicated
Plaintiff’s physical health required very little of Dr. Saborio. In response to those questions, Dr.
Saborio merely marked an “X” or drew a circle to indicate his response without further
explanation. (R. 506—08). Such “check a box or fill in a blank” responses are weak evidence.
Mason, 994 F.2d at 1065. Check-box considerations are especially at play here regarding Dr.
Saborio’s absences finding. For this finding, Dr. Saborio was not required to provide any
explanation for his prediction that Plaintiff would require four or more absent days each month,
nor was he asked to provide an upper limit to how many days she might need. (R. 508). Thus,
little weight was appropriate considering the reliability of the opinion. See Mason, 994 F.2d at
1065.
The Court also finds it natural the ALJ would look to Plaintiff’s mental health records to
determine whether Plaintiff suffered attention and concentration deficits. Attention and
concentration are mental functions whether their origin lies in a physical or mental health
condition. Therefore, whatever the cause of Plaintiff’s alleged attention and concentration
deficits, it was reasonable for the ALJ to expect a manifestation of those deficiencies in
Plaintiff’s mental health records. The ALJ scoured those records to ensure he did not miss any
evidence that might confirm proposed limitations. (R. 554—55) (citing Ex. 1F, 3F, 5F, 7F, 11F,
and 13F). Throughout Plaintiff’s mental health records, she was described as cooperative during
exams, oriented in all spheres, and lacking in any significant impairment of memory or
judgment. (Ex. 1F at R. 237; Ex. 3F at R. 260; Ex. 13F at R. 1068). Though she complained of
difficulty concentrating on occasion, she was attentive and her interactions with providers were
consistently normal. (Ex. 5F at R. 375; Ex. 7F at R. 502). The ALJ acknowledged her testimony
concerning how pain could affect her concentration. (R. 551). However, after reviewing
Plaintiff’s 2012—2018 mental health records, the ALJ concluded that Plaintiff had “deficits of
mood and affect,” but “no lasting significant deficits of . . . thought process, memory, attention,
concentration, orientation, or insight and judgment.” (R. 555); (R.549) (discussing the mental
disorder listings). The Court finds the ALJ’s decision in this regard is supported by substantial
evidence and notes that the lack of objective evidence concerning purported attention and
concentration deficits is particularly forceful. See Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d
Cir. 1983) (“The Secretary is entitled to rely not only on what the record says, but also on what it
does not say.”).
The Court further notes that the ALJ thoroughly reviewed Plaintiff’s physical health
records to arrive at the non-disability determination. From the ALJ’s comprehensive review of
Plaintiff’s physical and mental records, he found Plaintiff suffered from three severe
impairments (degenerative disc disease, depression, and anxiety), and several non-severe
impairments. (R. 547—48). The ALJ was attentive to evidence of all impairments—severe and
non-severe—particularly symptoms related to Plaintiff’s lumbar and cervical spine problems,
e.g., evidence that conditions of the spine had resulted in decreased range of motion and
tenderness, but not “lasting deficits of gait, strength, sensation, reflexes, or atrophy.” (R. 552).
The ALJ found Plaintiff’s spinal conditions and headaches were manageable, and that, overall,
Plaintiff’s course of treatment for those conditions had been relatively conservative. (R. 553).
Formulating the RFC, the ALJ considered that objective evidence, Plaintiff’s testimony as to her
Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment
(Doc. No. 14) is DENIED and Defendant’s Motion for Summary Judgment (Doc. No. 16) is
GRANTED.
/s Alan N. Bloch
United States District Judge
ecf: Counsel of Record
symptoms (R. 550—51), her activities of daily living (R. 555—56), and the opinion evidence (R.
556—57). Considering those inputs, the ALJ determined that Plaintiff had “the residual
functioning capacity to perform light work . . . except [she] requires a sit/stand option at the work
station, changing positions every 15 minutes while continuing to work, and she is able to tolerate
occasional interaction with supervisors and co-workers but is not able to tolerate public
interaction.” (R. 550). That RFC made three occupations available to Plaintiff: collator, small
parts assembler, and inspector. (R. 559). The ALJ specified that Plaintiff could perform such
occupations at an SVP of 2 (R. 559), i.e., at an unskilled level. Zirnsak v. Colvin, 777 F.3d 607,
616 (3d Cir. 2014). Unskilled work is work which “needs little or no judgment to do simple
duties that can be learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). The
analysis and RFC formulation thus demonstrates to the Court that the ALJ did not overlook
evidence of Plaintiff’s physical impairments.
For the foregoing reasons, the Court finds the ALJ did not fail to consider any evidence,
nor did he reject any evidence without a reason or for the wrong reason. The decision permits
this Court’s meaningful review, and, having exercised that reviewing power, the Court finds the
underlying decision is supported by substantial evidence. Further, while, in her motion for
summary judgment, Plaintiff indicated remand would be necessary on the ground that “there is
new and material evidence that should be considered by the Commissioner,” (Doc. No. 14), the
Court finds no development of an argument supporting that statement in the accompanying brief.
Therefore, the Court will not address such an issue. Salyards ex rel. Pittinger v. Astrue, No.
CIV.A. 11-151, 2013 WL 53728, at *2 (W.D. Pa. Jan. 3, 2013). Accordingly, the Court grants
Defendant’s Motion for Summary Judgment.