CARPEAL v. KIJAZAKI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KEVIN CARPEAL, )

)

Plaintiff, )

)

v. ) Civil Action No. 21-228

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 29th day of August, 2022, 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 claim for disability insurance benefits under

Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., and his claim for supplemental

security income benefits under Subchapter XVI of the Act, 42 U.S.C. § 1381 et seq., 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 Several of Plaintiff’s arguments ask the Court to review the decision of the Appeals

Council not to review and/or remand the decision of the Administrative Law Judge (“ALJ”)

denying his claim for benefits. He asserts that the Council improperly refused to consider

records from his podiatrist, Arnold L. Tarpley, D.P.M. (R. 10-19), submitted to the Council after

the ALJ had issued her decision. However, as the Commissioner points out, 42 U.S.C. § 405(g)

permits a district court to review only the Commissioner’s final decision. See also Califano v.

Sanders, 430 U.S. 99, 108 (1977). Since the Appeals Council declined to review the ALJ’s

decision, that ALJ decision became and constitutes the Commissioner’s final decision. See Sims

v. Apfel, 530 U.S. 103, 107 (2000) (citing 20 C.F.R. §§ 404.900(a)(4)-(5), 404.955, 404.981,

422.210(a)); Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001). As such, the Court here is not

reviewing the appropriateness of the Appeals Council’s actions, but rather the ALJ’s decision.

See Daniel M. v. Comm’r of Soc. Sec., No. CV 21-10533 (RMB), 2022 WL 2952912, at *6

(D.N.J. July 26, 2022).

What the Court can do is decide whether a remand pursuant to Section 405(g) is

warranted based on the new evidence from Dr. Tarpley. Although evidence that was not before

the ALJ cannot be considered by a district court in its determination of whether or not the ALJ’s

decision was supported by substantial evidence, that evidence may establish the need for a

sentence six remand. See Matthews, 239 F.3d at 594; Chandler v. Comm’r of Soc. Sec., 667 F.3d

356, 360 (3d Cir. 2011). Sentence six provides:

[The court] may at any time order additional evidence to be taken

before the Commissioner of Social Security, but only upon a

showing that there is new evidence which is material and that there

is good cause for failure to incorporate such evidence into the

record in a prior proceeding.

To remand a case based on new evidence which was not before the ALJ, the Court must

determine that the following criteria have been met: First, the evidence must be new and not

merely cumulative of what is in the record. Second, the evidence must be material. This means

that it must be relevant and probative, and there must be a reasonable possibility that the new

evidence would have changed the outcome of the determination. Third, the plaintiff must

demonstrate good cause for not having incorporated the new evidence into the administrative

record. See Matthews, 239 F.3d at 594; Szubak v. Secretary of Health & Human Services, 745

F.2d 831, 833 (3d Cir. 1984). Plaintiff cannot meet this burden.

At the administrative hearing on January 7, 2020, Plaintiff’s former counsel informed the

ALJ that the records from Dr. Tarpley at issue were still outstanding. (R. 59-60). He indicated

that the records had been requested and that he expected to receive them “in the next couple

weeks.” (Id.). The ALJ stated in response, and again at the conclusion of the hearing, that she

would consider the records if she received them before she issued a decision. (R. 60, 97-98). On

February 3, counsel sent a letter to the ALJ indicating that he still had not received Dr. Tarpley’s

records and requesting more time to obtain them. (R. 362). The ALJ did not respond to this

letter but, rather, on February 12, 2020, issued her decision. Plaintiff appealed to the Appeals

Council on March 30, 2020 (R. 213) but did not submit Dr. Tarpley’s records until May 14,

2020. (R. 9). The Appeals Council declined to review the ALJ’s decision based on this evidence

because it found that there was no reasonable probability that the new evidence would have

changed the outcome of the determination. (R. 2). As noted, the Court cannot review the

Appeals Council’s decision, but, in any event, it agrees that Dr. Tarpley’s records do not warrant

a sentence six remand.

Even assuming the records at issue are new, they are not material, as there is not a

reasonable possibility that they would have changed the outcome of the determination. The

records merely demonstrate sporadic, conservative treatment and restate complaints Plaintiff has

raised regarding his feet. While Plaintiff asserts that the records would have provided support

for Dr. Tarpley’s medical source opinion, the ALJ evaluated that opinion in the context of

similar evidence from the same time period already made part of the record documenting

Plaintiff’s diabetic neuropathy and use of Norco. (R. 31, 372, 443-50). Regardless, it is not

clear that Plaintiff has demonstrated any good cause for failing to timely obtain the evidence at

issue other than to vaguely blame Dr. Tarpley’s office. Accordingly, this “new evidence” does

not call for a remand.

Plaintiff also argues that the ALJ erred in considering the medical opinion evidence in the

record in formulating his residual functional capacity (“RFC”), specifically in finding the

opinion of the state reviewing agent, Arcadio Agudelo Hernandez, M.D. (R. 99-109), to be more

persuasive than those of his treating physician Wladyslaw Bobak, M.D. (R. 492-97), and his

treating podiatrist, Dr. Tarpley (R. 526-31). The Court first notes, as Plaintiff appears to

acknowledge, that for cases such as this one, filed on or after March 27, 2017, the regulations

have eliminated the “treating physician rule.” Compare 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2) (applying to cases prior to the amendment of the regulations) with 20 C.F.R. §§

404.1520c(a), 416.920c(a) (applying to later cases). See also 82 Fed. Reg. 5844-01, at 5853

(Jan. 18, 2017). While the medical source’s treating relationship with the claimant is still a valid

and important consideration, it is just one of five factors at the ALJs’ disposal as they determine

the persuasiveness of the medical opinions, of which “the two most important factors” are

consistency and supportability. Id. at §§ 404.1520c(a)-(c), 416.920c(a)-(c); 82 Fed. Reg. at

5853.

Plaintiff contends that the ALJ errored in finding Dr. Hernandez’s opinion to be

consistent with the record because Dr. Hernandez did not have access to some of the later

evidence in the file, including the opinions of Drs. Bobak and Tarpley. However, the fact that

the state reviewing agent’s opinion was rendered before other evidence became available does

not mean the ALJ was prohibited from finding it to be persuasive. See Chandler, 667 F.3d at

361 (“The Social Security regulations impose no limit on how much time may pass between a

report and the ALJ's decision in reliance on it.”). While Dr. Hernandez may not have had access

to the whole record, the ALJ did and specifically evaluated Dr. Hernandez’s opinion in light of

all the record evidence. (R. 33-34). Moreover, she did not simply adopt Dr. Hernandez’s

Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary

Judgment (Doc. No. 13) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.

No. 16) is GRANTED as set forth herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

opinion in whole, but rather found it partially persuasive to crafting an RFC that differed

somewhat from that opinion. This is precisely what an ALJ must do. See Titterington v.

Barnhart, 174 Fed. Appx. 6, 11 (3d Cir. 2006) (“Surveying the medical evidence to craft an RFC

is part of an ALJ’s duties.”); Mays v. Barnhart, 78 Fed. Appx. 808, 813 (3d Cir. 2003).

There is no indication as to the portion of the record evidence to which Drs. Bobak and

Tarpley had access in formulating their check-box opinions. Merely because they were issued

later does not mean that Drs. Bobak and Tarpley reviewed the entire record in this matter. In any

event, as she did with Dr. Hernandez’s opinion, the ALJ evaluated these opinions in light of all

of the evidence. She acknowledged that Plaintiff had a treating relationship with Dr. Bobak and

took Plaintiff at his word that he saw Dr. Tarpley “every 8-9 weeks.” (R. 32). However, she

found both opinions to be inconsistent with and unsupported by the medical evidence. In

particular, she noted limitations to which these doctors opined which Plaintiff himself denied,

such as issues with his upper extremities, and inconsistencies between the opinions and the

clinical findings. She also pointed out that neither Dr. Bobak nor Dr. Tarpley provided any

supporting explanation for the restrictions to which they opined. (R. 32-33). This discussion of

why she found the opinions of Dr. Bobak and Dr. Tarpley to be less persuasive than that of the

state reviewing agent was thorough and supported by substantial evidence.

The Court emphasizes that, 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. See Hartranft v. Apfel, 181 F.3d

358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)); Monsour Med. Ctr. v. Heckler, 806 F.2d

1185, 1190-91 (3d Cir. 1986); Berry, 738 F. Supp. at 944 (citing Cotter, 642 F.2d at 705). Here,

the ALJ considered and discussed the objective medical evidence, Plaintiff’s testimony, and the

medical opinion evidence. All of this constitutes substantial evidence in support of the ALJ’s

findings.

Accordingly, for the reasons set forth herein, the Court finds that the ALJ employed the

proper legal standards and that substantial evidence supports her decision. The Court will

therefore affirm.