DEMSKO v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ASHLEY M. DEMSKO, )

)

Plaintiff, )

)

v. ) Civil Action No. 22-876

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 19th day of September, 2023, 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., 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 Plaintiff’s argument hinges primarily on his contention that the Administrative Law

Judge (“ALJ”) erred in discounting evidence from outside Plaintiff’s insured period. She argues

that proper consideration of this evidence would have impacted the ALJ’s residual functional

capacity (“RFC”) findings and her decision that Plaintiff was not disabled during the relevant

time. The Court disagrees and therefore will affirm.

At the outset, the Court notes that Plaintiff’s assertion that the ALJ found “all evidence

outside of June 11, 2018, to December 31, 2018, irrelevant” (Doc. No. 11, p. 15) is inaccurate. It is

true that the relevant window in this matter is fairly small, as Plaintiff’s alleged onset date was June

11, 2018, and her date last insured was December 31, 2018. Plaintiff accordingly had to prove she

was disabled within those dates. See 20 C.F.R. § 404.131. Although the ALJ correctly identified

this as the relevant period, by no means did she categorically reject or ignore all evidence from

outside that time frame. (R. 21). To the contrary, she discussed and considered evidence from as far

back as 2015 and as recently as 2021. She properly focused primarily on evidence from the insured

period, but clearly considered evidence from well outside that time frame.

As part of Plaintiff’s argument, she contends that the ALJ’s failure to consider evidence

outside of the insured period – which, again, is not the case – led to inadequate consideration of the

opinions of her treating neurologist, Arvind Vasudevan, M.D. (R. 838-40), and her treating

chiropractor Shaun-Michael Basinger, D.C. (R. 855-60). To be clear, the ALJ did consider both of

these opinions, despite the fact that Dr. Vasudevan’s was dated June 9, 2021, and Dr. Basinger’s was

dated June 28, 2021. (R. 23-24). However, she accurately noted that these opinions were from two

and a half years after Plaintiff’s date last insured, that Dr. Vasudevan had given no indication as to

the time period to which his opinion pertained, and that Dr. Basinger had not even started treating

Plaintiff until April of 2021.

While the ALJ can, and did, consider evidence after Plaintiff’s date last insured, such

evidence is relevant only if it pertains to Plaintiff’s condition during the relevant period. See Ortega

v. Comm’r of Soc. Sec., 232 Fed. Appx. 194, 197 (3d Cir. 2007). “Further, a medical condition

which begins during a claimant’s insured period, but does not become disabling until after its

expiration, may not be the basis for qualification for disability benefits under the Act.”

Capoferri v. Harris, 501 F. Supp. 32, 36 (E.D. Pa. 1980), aff'd 649 F.2d 858 (3d Cir. 1981).

Both of the opinions at issue are from years after Plaintiff’s date last insured, and neither explain

how they would, or even purport to, relate back to the relevant time period. The ALJ’s

consideration of the timing of the opinions was, therefore, appropriate.

Regardless, the ALJ did not rely merely on the dates of Drs. Vasudevan’s and Basinger’s

opinions in assessing their persuasiveness. As Plaintiff acknowledges, 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) (applying to cases prior to the amendment of the

regulations) with 20 C.F.R. § 404.1520c(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 consideration, “the two most important factors for determining the

persuasiveness of medical opinions are consistency and supportability.” 82 Fed. Reg. at 5853.

See also §§ 404.1520c(b) and (c). The ALJ’s analysis comports with this standard.

It is noteworthy that, despite being completed much later than Plaintiff’s date last insured, the

ALJ did not reject the opinions of Drs. Vasudevan and Basinger outright, but rather found them to be

partially persuasive. (R. 23). In so finding, she noted that the opinions were inconsistent with the

objective medical evidence from the time period in question, specifically citing clinical findings

routinely showing normal strength, tone, reflexes, and gait, as well as grossly intact sensation and no

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

Judgment (Doc. No. 10) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.

No. 12) is GRANTED as set forth herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

neurological defects. (R. 21-23). She also noted that Dr. Basinger’s opinion was largely based on

Plaintiff’s self-reported symptoms. (R. 23-24). The ALJ therefore properly considered the criteria

set forth in Section 404.1520c in assessing these opinions. The Court notes that the record

contains other medical opinions suggesting less restrictive limitations than what the ALJ

ultimately included in Plaintiff’s RFC.

To the extent, then, that Plaintiff’s argument that consideration of record evidence from outside

of the relevant period demonstrates the need for a more restrictive RFC is based on the 2021 opinions

from Drs. Vasudevan and Basinger, such argument fails for the reasons stated above. To the extent that

Plaintiff asserts that additional restrictions such as her need to lie down during her migraine headaches,

her inability to sit or stand for prolonged periods, her reduced visual acuity, and her inability to meet

tolerated limits in terms of off-task time and absences is based on her own testimony, the Court

emphasizes that, while a claimant’s testimony regarding his or her subjective complaints is certainly

relevant, an ALJ is not under an obligation to simply accept what the claimant said without question.

See 20 C.F.R. § 404.1529(c)(4); Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011).

Moreover, where an ALJ has articulated reasons supporting a “credibility” determination, that

determination is afforded significant deference. See Horodenski v. Comm’r of Soc. Sec., 215 Fed.

Appx. 183, 188-89 (3d Cir. 2007); Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). As noted

above, the ALJ considered all of the evidence, focusing on the evidence from the insured period and

discussing at length the objective medical evidence, treatment records, medical opinion evidence, and

Plaintiff’s activities of daily living. While Plaintiff objects to the ALJ’s consideration of factors like her

reported ability to go for walks and do yard work (R. 572, 776, 606), although such activities may not

alone support a finding of non-disability, there was nothing inappropriate in the ALJ considering those

activities in evaluating the severity of Plaintiff’s symptoms and limitations. See 20 C.F.R. §

404.1529(c)(3)(i); SSR 16-3p, 2016 WL 1119029, at *7 (S.S.A. Mar. 16, 2016); Wright v. Astrue, No.

Civ. 10-942, 2011 WL 4079067, at *3 (W.D. Pa. Sept. 13, 2011).

Again, the ALJ considered the objective medical evidence, including clinical findings,

treatment notes, and medical imaging, as well as the opinion evidence, and Plaintiff’s daily

activities. All of this constitutes substantial evidence sufficient to support the ALJ’s decision,

especially in light of the United States Supreme Court’s reminder that the threshold for meeting

the substantial evidence standard “is not high.” Biestek, 139 S. Ct. at 1154, and considering the

small window of time at issue. Accordingly, the Court will affirm.