# PONESS v. SAUL

> District Court, W.D. Pennsylvania · March 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10416479

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 29, 2021
- **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/10416479

## How later opinions describe it (automated extraction)

- affirming an ALJ’s decision to credit the opinion of the non-examining state agency reviewing psychologist because his opinion was more supported by the record than the opinions of the treating physician and the consultative examiner

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TRACIE M. PONESS, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-114
)
ANDREW M. SAUL, )
Commissioner of Social Security, )
)
Defendant. )

O R D E R

AND NOW, this 29th day of March, 2021, upon consideration of the parties’
cross-motions for summary judgment, the Court, upon review of the Commissioner of Social
Security’s final decision granting Plaintiff’s claim for disability insurance benefits under
Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., as of June 22, 2018, but
denying the claim prior to that date, finds that the Commissioner’s findings are supported by
substantial evidence and, accordingly, affirms. See 42 U.S.C. § 405(g); Biestek v. Berryhill, 139
S. Ct. 1148, 1153-54 (2019); Jesurum v. Secretary 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)). See
also Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (if supported by substantial
evidence, the Commissioner’s decision must be affirmed, as a federal court may neither reweigh
the evidence, nor reverse, merely because it would have decided the claim differently) (citing
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).1

1 The Commissioner found that Plaintiff was not disabled under the Social Security
Act prior to June 22, 2018, but that she became disabled on that date by operation of the
Medical-Vocational Rules. (R. 26). Plaintiff argues that she was disabled prior to that date, and,
therefore, that she is entitled to benefits for the period from her alleged onset date of April 15,
2016 through June 21, 2018. In so arguing, Plaintiff contends that the Administrative Law Judge
(“ALJ”) failed to properly evaluate the medical opinions in the record, including those of her
treating physicians as well as that of the state reviewing agent, in formulating her residual
functional capacity (“RFC”) and in finding her to be not disabled prior to June of 2018. The
Court finds no merit to these arguments and instead finds that substantial evidence supports the
ALJ’s decision that Plaintiff is not entitled to benefits for the relevant time period of April 15,
2016 through June 21, 2018.

Plaintiff’s primary argument is that the ALJ gave insufficient weight to the April
18, 2018 opinion of Henry Folb, M.D. (R. 1184-86), and to the March 29, 2018 opinion of Barry
Hirsch, M.D. (R. 976-77), two of her treating physicians, particularly by failing to incorporate
into her RFC restrictions that she asserts would prevent her from working during the relevant
time period. As Plaintiff points out, when assessing a claimant’s application for benefits, the
opinions of the claimant’s treating physicians generally are to be afforded significant weight.
See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001); Plummer v. Apfel, 186 F.3d 422, 429
(3d Cir. 1999). In fact, the regulations provide that for claims, such as this one, filed before
March 27, 2017, a treating physician’s opinion is to be given “controlling weight” so long as the
opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques
and not inconsistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2);
Fargnoli, 247 F.3d at 43; Plummer, 186 F.3d at 429. As a result, the ALJ may reject a treating
physician’s opinion outright only on the basis of contradictory medical evidence, and not on the
basis of the ALJ’s own judgment or speculation, although he or she may afford a treating
physician’s opinion more or less weight depending upon the extent to which supporting
explanations are provided. See Plummer, 186 F.3d at 429. However, it is also important to
remember that:

The ALJ -- not treating or examining physicians or State agency
consultants -- must make the ultimate disability and RFC
determinations. Although treating and examining physician
opinions often deserve more weight than the opinions of doctors
who review records, “[t]he law is clear . . . that the opinion of a
treating physician does not bind the ALJ on the issue of functional
capacity[.]” Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d
Cir.2011). State agent opinions merit significant consideration as
well.
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (internal citations omitted in
part). This is particularly pertinent in a case like this one where there is a good deal of objective
medical evidence and several opinions regarding Plaintiff’s functional capacity. An important
part of the ALJ’s job in a case like this is to consider the consistency of each medical opinion
with the other evidence, including the other medical opinions of record. See 20 C.F.R. §
404.1527(c)(4). Here, the ALJ did just that.

Indeed, the ALJ did not reject the opinions of Drs. Folb and Hirsch outright;
rather, she afforded them partial weight. (R. 22). She discussed the evidence at length and
explained that she found these opinions to be partially supported by this evidence. She pointed
out, for instance, that the objective medical evidence did not support Dr. Folb’s conclusions
regarding Plaintiff’s ability to lift and her postural and manipulative limitations, as well as her
ability to maintain attention and concentration. (Id.). In regard to Dr. Hirsch, the ALJ noted that
his opinion was inconsistent with his own treatment notes, which she discussed in some detail.
(Id.). Such consideration was appropriate, see Bryson v. Comm’r of Soc. Sec., 639 Fed. Appx.
784, 787 (3d Cir. 2016); Kibe v. Comm’r of Soc. Sec., 787 Fed. Appx. 801, 802 (3d Cir. 2019),
and supported by substantial evidence. The Court further notes that this case is a good example
of why “check-box” opinions, such as those of Drs. Folb and Hirsch, generally constitute “weak
evidence at best.” Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993); Colvin v. Comm’r of
Soc. Sec., 675 Fed. Appx. 154, 157 (3d Cir. 2017). The language describing the functional
limitations set forth in these opinions highlighted by Plaintiff (see Doc. No. 16 at p. 8) was not
crafted by these physicians; rather, they were given a binary choice as to whether these
limitations should apply or not. The fact that the ALJ did not adopt them verbatim is not
surprising given the circumstances.

As Plaintiff acknowledges, the ALJ also relied on the contrary opinion of Bluett
Jones, M.D., the state reviewing agent. While an ALJ must consider the treating relationship
between a claimant and an opining doctor, when the medical opinion of a treating source
conflicts with that of a non-treating, or even a non-examining physician, “the ALJ may choose
whom to credit.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). See also Dula v.
Barnhart, 129 Fed. Appx. 715, 718-19 (3d Cir. 2005). The ALJ, of course, “‘cannot reject
evidence for no reason or for the wrong reason,’” Morales, 225 F.3d at 317 (quoting Plummer,
186 F.3d at 429), and can only give the opinion of a non-treating, non-examining physician
weight insofar as it is supported by evidence in the case record, considering such factors as the
supportability of the opinion in the evidence, the consistency of the opinion with the record as a
whole, including other medical opinions, and any explanation provided for the opinion. See
Social Security Ruling 96-6p, 1996 WL 374180 (S.S.A.), at *2 (1996). In certain cases, it would
not be unwarranted to give more weight to the non-examining professional’s opinion. See
Salerno v. Comm’r of Soc. Sec., 152 Fed. Appx. 208 (3d Cir. 2005) (affirming an ALJ’s decision
to credit the opinion of the non-examining state agency reviewing psychologist because his
opinion was more supported by the record than the opinions of the treating physician and the
consultative examiner).

Plaintiff objects to the weight afforded to Dr. Jones’ opinion, however, due to the
fact that this opinion, completed on September 2, 2016, was rendered without access to later
Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment (document No. 15) is DENIED and that Defendant’s Motion for Summary Judgment
(document No. 17) is GRANTED.

s/Alan N. Bloch
United States District Judge

ecf: Counsel of record

record evidence, including Dr. Folb’s and Dr. Hirsch’s opinions and treatment records. It is not
unexpected, though, for the record to contain evidence post-dating the state reviewing agent’s
opinion. Generally speaking, “there is always a time lapse between the consultant’s report and
the ALJ hearing and decision.” Chandler, 667 F.3d at 361. While there certainly was such a
lapse here, there is no evidence that Plaintiff’s condition significantly changed over that time.
Moreover, the reviewing agent did have access to a substantial portion of the record evidence (R.
82-84) – especially compared to Drs. Folb and Hirsch – and the ALJ, of course, did have access
to this later evidence and clearly relied upon and discussed that evidence in making her findings.
Further, the ALJ did not simply adopt Dr. Jones’ opinion, but rather considered all of the
evidence in formulating the RFC. In fact, many of the restrictions contained in the very detailed
RFC finding were adopted from the opinions of Drs. Folb and Hirsch. (R.18-19, 22). It is also
important to note that the ALJ did find that Plaintiff became disabled as of June 22, 2018, and
the opinions of Drs. Folb and Hirsch were much closer in time to that date than to the alleged
onset date.

Finally, Plaintiff suggests that since the ALJ gave “great weight” to Dr. Jones’
opinion, she was obligated to include the exact limitations contained in that opinion in
determining Plaintiff’s RFC. This is simply not the case; ALJs are never required to simply pick
one opinion and adopt it wholesale. See Wilkinson v. Comm’r of Soc. Sec., 558 Fed. Appx. 254,
256 (3d Cir. 2014). See also Titterington v. Barnhart, 174 Fed. Appx. 6, 11 (3d Cir. 2006).
Instead, “[s]urveying the medical evidence to craft an RFC is part of an ALJ’s duties.”
Titterington. 174 Fed. Appx. at 11; Mays v. Barnhart, 78 Fed. Appx. 808, 813 (3d Cir. 2003). As
noted above, the ALJ’s consideration of Dr. Jones’ opinion was consistent with the record
evidence as a whole.

Accordingly, for all of the reasons set forth herein, the Court finds that substantial
evidence supports the ALJ’s decision and therefore affirms.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416479. Public record. Not legal advice.