# DEMSKO v. KIJAKAZI

> District Court, W.D. Pennsylvania · September 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10419084

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** September 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10419084. Public record. Not legal advice.