ABBEY v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MAURICE J. ABBEY, )

)

Plaintiff, )

)

v. ) Civil Action No. 22-337-E

)

MARTIN O’MALLEY,1 )

Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 29th day of December, 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 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

1 Martin O’Malley is substituted as the defendant in this matter, replacing former Acting

Commissioner Kilolo Kijakazi pursuant to Federal Rule of Civil Procedure 25(d) and 42 U.S.C.

§ 405(g). The Clerk is directed to amend the docket to reflect this change.

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)).2

2 Plaintiff argues that the findings of the Administrative Law Judge (“ALJ”) regarding his

residual functional capacity (“RFC”) is not supported by substantial evidence for two primary

reasons: First, Plaintiff contends that the ALJ’s assessment of his mental limitations is

insufficient because it is not supported by an RFC assessment done by a treating or examining

mental health provider. Second, he asserts that the ALJ’s findings lack sufficient support

because despite finding both state agency consultants’ opinions to be generally persuasive, he

failed to account fully for some of their opined limitations without discussion. The Court

disagrees on each count and finds instead that substantial evidence supports the ALJ’s RFC

findings and his ultimate determination that Plaintiff is not disabled.

Plaintiff’s first argument fundamentally misconstrues an ALJ’s duties under the Social

Security Administration’s regulations and governing Third Circuit case law. Not only is an ALJ

not obligated to base his or her RFC findings directly on the opinion or assessment of a treating

or examining physician, the ALJ need not base the RFC determination specially on any medical

opinion. An RFC assessment is an administrative, not a medical, one, and “[t]he ALJ – not

treating or examining physicians or State agency consultants – must make the ultimate disability

and RFC determinations.” Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).

See also 20 C.F.R. §§ 416.920b(c)(3), 416.946(c); SSR 96-5p, 1996 WL 374183 (S.S.A.) (July

2, 1996). This is consistent with the Third Circuit’s consistent postulation that “[t]here is no

legal requirement that a physician have made the particular findings that an ALJ adopts in the

course of determining an RFC.” Titterington v. Barnhart, 174 Fed. Appx. 6, 11 (3d Cir. 2006).

See also Chandler, 667 F.3d at 362 (holding that each fact incorporated into the RFC need not

have been found by a medical expert). As the Circuit Court explained in Titterington,

“[s]urveying the medical evidence to craft an RFC is part of an ALJ’s duties.” 174 Fed. Appx. at

11. Accordingly, an ALJ is not prohibited from making an RFC assessment even if no doctor

has specifically made the same findings, let alone a treating or examining doctor. See Hayes v.

Astrue, Civ. No. 07-710, 2007 WL 4456119, at *2 (E.D. Pa. Dec. 17, 2007). The Court further

notes that Plaintiff did not offer any functional capacity assessment or opinion from any of his

treating mental health providers despite the fact that it was his burden to provide evidence of his

disability. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

In any event, this was not a case completely devoid of medical opinions. As Plaintiff

acknowledges, there were two relevant state agency opinions that the ALJ did consider and that

he found to be generally persuasive. He argues, however, that the mental limitations included in

the RFC – that he was limited to performing simple, routine tasks and to no more than frequent

interactions with people in the workplace (supervisors, co-workers, or the public) (R. 26) – did

not adequately account for the state agency consultants’ opinions. Specifically, he asserts that

the consultants’ assessments that he was moderately limited in his ability to perform activities

within a schedule, maintain regular attendance, and be punctual within customary tolerances, as

well as in his ability to complete a normal workday and workweek without interruptions from

psychologically-based symptoms were not reflected in the RFC, which he points out contained

no limitations regarding his attendance or off-task time. This argument, however, invokes the

type of “categorical” thinking in regard to the substantial evidence standard rejected by the

United States Supreme Court in Biestek, 139 S. Ct. at 1154 (clarifying that the substantial

evidence threshold is “not high” and that “[i]t means – and means only – ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” (quoting

Consolidated Edison of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

As Plaintiff points out, both Lori Anne Young, Psy.D., in her January 20, 2021 opinion,

and Timothy Michael Ostrich, Psy.D., in his May 6, 2021 opinion, did in fact state that Plaintiff

was moderately limited in his ability to perform activities within a schedule, maintain regular

attendance, and be punctual within customary tolerances, as well as in his ability to complete a

normal workday and workweek without interruptions from psychologically-based symptoms.

(R. 82, 106). However, this was not the entirety of their opinions. Dr. Young further stated that

Plaintiff “is able to meet basic mental demands on a sustained basis despite the limitations

resulting from impairments” and that he “is capable of performing within a schedule and at a

consistent pace.” (R. 84). Dr. Ostrich further stated that Plaintiff is “able to meet basic mental

demands to complete 1-2 step tasks on a sustained basis despite the limitations resulting from

their mental health impairments,” that he is able to carry out very short and simple instructions

and make simple decisions, and that he “would not require special supervision in order to sustain

a routine.” (R. 100, 108, 109). Plaintiff’s contentions notwithstanding, the Court finds that the

ALJ’s findings adequately and fairly addressed these opinions.

The Court first notes that “no rule or regulation compels an ALJ to incorporate into an

RFC every finding made by a medical source simply because the ALJ gives the

source’s opinion as a whole ‘significant’ weight.’” Wilkinson v. Comm’r of Soc. Sec., 558 Fed.

Appx. 254, 256 (3d Cir. 2014) (citations omitted). Plaintiff appears to admit this, but argues that,

by failing to include any restrictions in the RFC pertaining to off-task time or attendance, the

ALJ failed to account for the assessments that he was moderately limited in his ability to perform

activities within a schedule, maintain regular attendance, be acceptably punctual, and complete a

normal workday and workweek without interruptions from psychologically-based symptoms

with no explanation for why he rejected these findings. However, this does not accurately reflect

the ALJ’s decision or the agency opinions themselves.

The ALJ did not “reject” or ignore these findings, and in fact, he expressly noted that the

consultants had found Plaintiff to have moderate difficulties concentrating, persisting, and

maintaining pace. (R. 29). However, he also considered both consultants’ opinion that Plaintiff

could perform work on a sustained basis if limited to simple tasks. (Id.). Accordingly, he

limited Plaintiff to work requiring the performance of only simple, routine tasks. (R. 26). The

ALJ therefore did account for moderate limitations in concentration and pace by acknowledging

Plaintiff’s limitations in complex work settings. While Plaintiff argues that this was insufficient,

there is no requirement for any specific off-task or attendance limitation to accompany opinions

of such moderate limitations. Neither Dr. Young nor Dr. Ostrich opined that Plaintiff would be

off-task or absent any specific amount of time. To the contrary, both opined that Plaintiff could

engage in sustained activity under certain circumstances. Their opinions, therefore, were not

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

Judgment (Doc. No. 9) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.

No. 11) is GRANTED as set forth herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

inconsistent with the ALJ’s RFC findings, and the ALJ was not required to explain why he had

omitted limitations to which no medical source had opined.

What the ALJ was required to do was to explain the basis for his RFC assessment

sufficiently to allow the Court to determine whether it was supported by substantial evidence.

The ALJ did just so here, discussing not only the “generally persuasive” opinions of the state

agency consultants, but also objective evidence such as generally normal mental status

examinations, Plaintiff’s conservative treatment and medication history, and his activities of

daily living. The Court agrees that the evidence relied upon by the ALJ constitutes substantial

evidence, as defined by the regulations and the Supreme Court, and therefore affirms.