MCDONALD v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SEAN PATRICK McDONALD, )

)

Plaintiff, )

)

v. ) Civil Action No. 22-1851

)

MARTIN O’MALLEY,1 )

Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 29th day of February, 2024, 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 for supplemental security

income benefits under Subchapter XVI of the Social Security 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

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.

because it would have decided the claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705

(3d Cir. 1981)).2

2 Plaintiff sets forth numerous reasons why he contends that the Administrative Law Judge

(“ALJ”) erred in finding him not to be disabled under the Act: (1) the ALJ failed in finding that

his carpal tunnel syndrome and vertebrae fractures were not severe impairments at Step Two of the

sequential analysis set forth in the Social Security Administration’s regulations, including by failing

to adequately develop the record; (2) the Appeals Council erred in declining to consider additional

evidence from his treating physician; (3) the ALJ improperly disregarded his treating physicians’

medical opinions and his ultimate residual functional capacity (“RFC”) findings are not based on

any medical opinion; and (4) the ALJ improperly disregarded the testimony of the vocational

expert (“VE”). The Court disagrees on all counts and finds that the ALJ’s decision is supported

by substantial evidence.

As to Plaintiff’s first argument, the Court notes that the Step Two determination as to

whether a claimant is suffering from a severe impairment is a threshold analysis requiring the

showing of only one severe impairment. See Bradley v. Barnhart, 175 Fed. Appx. 87, 90 (7th Cir.

2006). Accordingly, so long as a claim is not denied at Step Two, it is not generally necessary for the

ALJ specifically to have found any additional alleged impairment to be severe. See Salles v. Comm’r

of Soc. Sec., 229 Fed. Appx. 140, 145 n.2 (3d Cir. 2007); Lee v. Astrue, Civ. No. 06-5167, 2007 WL

1101281, at *3 n.5 (E.D. Pa. Apr. 12, 2007); Lyons v. Barnhart, Civ. No. 05-104, 2006 WL 1073076,

at *3 (W.D. Pa. Mar. 27, 2006); Gerald v. Berryhill, No. 3:17-CV-00575, 2018 WL 7364649, at *5

(M.D. Pa. Oct. 12, 2018), report and recommendation adopted, No. CV 3:17-575, 2019 WL 719829

(M.D. Pa. Feb. 19, 2019). Here, the ALJ found that Plaintiff did have severe impairments to satisfy

Step Two; since Plaintiff’s claim was not denied at that step, it does not matter whether the ALJ erred

in failing to find that Plaintiff’s carpal tunnel syndrome and vertebrae fractures were also severe

impairments.

Regardless, the ALJ properly found that Plaintiff’s carpal tunnel syndrome and vertebrae

fractures were not severe even under the lenient standard of Step Two. An impairment is “not

severe” where the medical evidence establishes that the condition has no more than a minimal

effect on the claimant’s ability to perform basic work activities, including inter alia, physical

functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or

handling. See 20 C.F.R. §§ 404.1522(b), 416.922 (b); Social Security Ruling 85-28, 1985 WL

56856 (S.S.A.), at *3 (1985); Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003)

(citing SSR 85-28). Plaintiff bears the burden of proof at this step. See Bowen v. Yuckert, 482

U.S. 137, 146 n.5 (1987). While Step Two is a de minimis screening device to dispose of

groundless claims, see Newell, 347 F.3d at 546, even under this lenient standard, the Court finds

that the ALJ’s decision was supported by substantial evidence.

The ALJ acknowledged that Plaintiff had been diagnosed and treated for carpal tunnel

syndrome and that he had a history of vertebrae fractures. However, the mere existence of a

diagnosis does not equate to a severe impairment. See Phillips v. Barnhart, 91 Fed. Appx. 775,

780 (3d Cir. 2004). Here, in discussing Plaintiff’s diagnosis and treatment for carpal tunnel

syndrome, the ALJ noted his complaints of tingling, numbness, and tenderness in his left wrist.

He pointed out, though, that after release surgery in March of 2018, there were minimal

continued complaints and objective medical evidence, including clinical examination findings,

demonstrating no significant limitations and full grip strength and range of motion. (R. 31). The

ALJ also noted that the consultative examiner and the state agency medical consultants did not

suggest the need for any manipulative limitations and that Plaintiff, in fact, did not allege any

specific limitations stemming from this condition. (Id.). Similarly, the ALJ did not dispute that

Plaintiff suffered from vertebrae fractures but stressed that Plaintiff had sought no treatment and

alleged no functional limitations based on this condition. He also considered medical imaging

showing no significant issues. (Id.). Indeed, even now, Plaintiff does not suggest what

additional restrictions should have been included in the RFC to account for his wrist and back

problems.

In any event, the ALJ properly accounted for any limitations caused by Plaintiff’s carpal

tunnel syndrome and vertebrae fractures in formulating his RFC. Plaintiff argues that the ALJ

failed to do so because the RFC contained no limitations regarding his use of hands or that might

result from his back condition. In assessing a claimant’s RFC, the ALJ “must consider

limitations and restrictions imposed by all of an individual’s impairments, even those that are not

‘severe.’” SSR 96-8p, 1996 WL 374184 (S.S.A.), at *5 (July 2, 1996). See also 20 C.F.R. §§

404.1545(a)(2), 416.945(a)(2). “While a ‘not severe’ impairment(s) standing alone may not

significantly limit an individual’s ability to do basic work activities, it may – when considered

with limitations or restrictions due to other impairments – be critical to the outcome of a claim.”

SSR 96-8p at *5. Here, the ALJ found – correctly – that carpal tunnel syndrome and vertebrae

fractures did not constitute severe impairments. Nonetheless, he expressly noted that these

conditions were accounted for by the limitation to medium work with postural restrictions

contained in the RFC. As discussed above, his rationale was solid and well-explained.

Plaintiff further suggests that the ALJ failed to develop the record adequately in regard to

the impact of these conditions on his ability to perform work-related activities. He is correct, of

course, that an ALJ has a duty to develop a full and fair record in a social security case. See

Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995); Carmichael v. Barnhart, 104 Fed. Appx. 803,

805 (3d Cir. 2004); 20 C.F.R. §§ 404.1512(b)(1), 416.912(b)(1). It does, however, remain

Plaintiff’s burden to supply evidence in support of his claim. See Ventura, 55 F.3d at 902; Money

v. Barnhart, 91 Fed. Appx. 210, 215 (3d Cir. 2004) (citing Bowen, 482 U.S. at 146 n.5); Hess v.

Sec. of Health, Educ., and Welfare, 497 F.2d 837, 840 (3d Cir. 1974). Here, Plaintiff provides no

specifics as to how the already lengthy record should have been further developed, pointing to no

additional evidence that should have been included that would have supported his claim.

Plaintiff next asserts that the Appeals Council erred in denying his request for review based

on the medical source statement from Grace McGorrian, M.D., dated September 16, 2022 – about

10 months after the ALJ issued his decision on November 15, 2021. However, 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) (“No statutory authority (the

source of the district court's review) authorizes the court to review the Appeals Council decision to

deny review.”). 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. McGorrian. 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.

Even assuming that the evidence meets the first criterion by constituting new, non-

cumulative evidence, it fails to meet the remaining two. As noted, Dr. McGorrian’s opinion is

dated September 16, 2022, and therefore postdates the ALJ’s decision by 10 months. See

Szubak, 745 F.2d at 833 (“An implicit materiality requirement is that the new evidence relate to

the time period for which benefits were denied, and that it not concern evidence of a later-

acquired disability or of the subsequent deterioration of [a] previously non-disabling

condition.”); Rainey v. Astrue, Civ. No. 11-125-E, 2012 WL 3779167, at *8 (W.D. Pa. Aug. 31,

2012). Despite Plaintiff’s claim to the contrary, Dr. McGorrian’s September 2022 opinion does

not purport to relate to any time except the time in which it was prepared.

However, even if it could be found to relate back to the relevant period, Plaintiff has not

attempted to – and cannot – establish good cause for not having incorporated this evidence into

the record previously. No reason has been offered for failing to obtain a function-by-function

opinion from Dr. McGorrian – who treated Plaintiff at least as early as January 2021 (R. 705) –

sooner so as to make it available to the ALJ when he rendered his decision. In fact, it appears

that the assessment may even have been performed in response to the ALJ’s unfavorable

decision, as there is no mention at the hearing that Plaintiff had scheduled or was waiting on such

an assessment. Such “sand-bagging” does not constitute good cause to support a Sentence Six

remand. See Glover v. Comm’r of Soc. Sec., No. 1:09-cv-520, 2010 WL 2671291, at *5 (W.D.

Mich. June 10, 1010) (“The sentence six ‘good cause’ requirement is not met by the solicitation

of a medical opinion to contest the ALJ’s decision.”) (citing Perkins v. Chater, 107 F.3d 1290,

1296 (7th Cir. 1997), and Koulizos v. Secretary of Health and Human Servs., No. 85-1654,1986

WL 17488, at *2 (6th Cir. Aug. 19, 1986)).

Third, Plaintiff argues that the ALJ improperly disregarded his treating physicians’ medical

opinions and that his RFC findings were not based on any medical opinion. Specifically, he argues

that the ALJ failed to adequately consider the opinion letters of Dr. McGorrian, dated January 6,

2021 (R. 705) and Stephen Zerby, M.D., dated February 8, 2021 (R. 706). He asserts that, as

opinions of treating medical sources, they are entitled to greater weight than those of a physician

who has examined him just once or not at all, citing what is commonly referred to as the “treating

physician rule.” (Doc. No. 12, pp. 15-16). However, as the Commissioner points out, 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 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), 416.920c(b) and (c).

In any event, the ALJ did expressly acknowledge that Dr. Zerby was Plaintiff’s treating

psychiatrist. However, he noted that Dr. Zerby’s letter was not persuasive because it contained

no function-by-function analysis for the purpose of determining Plaintiff’s RFC. (R. 36). The

ALJ also considered Plaintiff’s treating relationship with Dr. McGorrian, finding there to be no

contemporaneous records of any such treatment. (Id.). He indicated though, that Dr.

McGorrian’s statement went to the broader issue of entitlement to disability benefits reserved to

the Commissioner rather than to Plaintiff’s actual functional capacity. It is well established that

a physician’s statement that a claimant is “disabled” or “unable to work” is not binding on the

ALJ, as opinions as to whether a claimant is disabled is reserved to the Commissioner of Social

Security. See 20 C.F.R. §§ 404.1520b(c)(3)(i) and 416.920b(c)(3)(i); Griffin v. Comm’r of Soc.

Sec., 305 Fed. Appx. 886, 891 (3d Cir. 2009); Knepp v. Apfel, 204 F.3d 78, 85 (3d Cir. 2000).

As such, the ALJ’s analysis complied with his duties under Sections 404.1520c and 416.920c.

Indeed, even under the older regulations, opinions such as these would have been evaluated in

much the same way and almost certainly led to the same result.

Plaintiff further contends that the ALJ’s RFC determination lacked sufficient record

support and notes that the determination “is not based on the opinion of any physician” and

posits that the ALJ’s findings were at least partially inconsistent with all of the medical opinions

in the record. (Doc. No. 12, p.18). This is not, however, error in and of itself. The Third Circuit

Court of Appeals has made clear that “[t]he ALJ – not treating or examining physicians or State

agency consultants – must make the ultimate disability and RFC determinations.” Chandler, 667

F.3d at 361. See also 20 C.F.R. §§ 404.1520b(c)(3), 404.1546(c), 416.920b(c)(3), 416.946(c);

SSR 96-5p, 1996 WL 374183 (S.S.A.) (July 2, 1996). “There is no legal requirement that a

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

Judgment (Doc. No. 11) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.

No. 13) is GRANTED as set forth herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

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. See Hayes v. Astrue, Civ. No. 07-710, 2007 WL 4456119, at *2 (E.D. Pa.

Dec. 17, 2007).

Here, the ALJ did exactly what he was required to do – consider the entire record in

formulating an appropriate RFC. He discussed at length Plaintiff’s conservative treatment

history absent polysubstance abuse, the objective medical findings, and Plaintiff’s activities of

daily living in determining Plaintiff’s functional abilities. Moreover, while he did not adopt the

opinions of the consulting and reviewing agents in their entirety, he did find them to be partially

persuasive and considered them carefully in making his RFC findings. Further, although he was

not compelled to accept Plaintiff’s testimony without question, see 20 C.F.R. §§ 404.1529(c)(4),

416.929(c)(4); Chandler, 667 F.3d at 363, he considered such testimony in his analysis. His

findings are therefore more than supported by substantial evidence.

Plaintiff’s final argument is that the ALJ disregarded the testimony of the VE that an

individual off task more than 15 percent of the time would not be able to work. (R. 68-69).

However, as the Commissioner points out, the ALJ did not find that Plaintiff was so limited in

regard to off-task time, and the ALJ need not adopt VE testimony in response to a hypothetical

limitation that is not supported by the record. See Szallar v. Comm’r of Soc. Sec., 631 Fed.

Appx. 107, 111 (3d Cir. 2015); Jones v. Barnhart, 364 F.3d 501, 506 (3d Cir. 2004). The Court

notes that “objections to the adequacy of hypothetical questions posed to a vocational expert

often boil down to attacks on the RFC assessment itself,” Rutherford v. Barnhart, 399 F.3d 546,

554 n.8 (3d Cir. 2005), and that, as discussed herein, substantial evidence supports the ALJ’s

RFC assessment. Because the operative hypothetical accurately conveyed Plaintiff’s RFC, the

ALJ appropriately relied upon the vocational expert’s response.

Accordingly, the Court finds that the ALJ applied the proper legal standards and that

substantial evidence supports his findings. The Court will therefore affirm.