DUDICS JR v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

FRED MIKE DUDICS, JR., )

)

Plaintiff, )

)

v. ) Civil Action No. 23-39-E

)

COMMISSIONER OF SOCIAL SECURITY, )

)

Defendant. )

)

O R D E R

AND NOW, this 28th day of March, 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., 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,

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merely because it would have decided the claim differently) (citing Cotter v. Harris, 642

F.2d 700, 705 (3d Cir. 1981)).1

1 Plaintiff raises one argument as to why he believes the Administrative Law Judge

(“ALJ”) erred in finding that he was not disabled. He contends the ALJ’s residual

functional capacity (“RFC”) assessment is not supported by substantial evidence because

Plaintiff’s degenerative disc disease surfaced after all of the medical opinions were

completed. (Doc. No. 8 at 12-16). Plaintiff asserts that the ALJ based the RFC on his

lay opinion because no medical opinion addressed Plaintiff’s limitations given his

degenerative disc disease. (Id.). For the following reasons, the Court disagrees and

finds the ALJ’s decision to be supported by substantial evidence.

The ALJ is permitted to craft the ultimate RFC assessment; indeed, 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 v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011); see also 20 C.F.R. §§

404.1520b(c)(3), 404.1546(c); SSR 96-5, 1996 WL 374183 (S.S.A. July 2, 1996). “There

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 does not need to be found by a medical expert). Indeed, “[s]urveying the medical

evidence to craft an RFC is part of an ALJ’s duties.” Titterington, 174 Fed. Appx. at 11.

In sum, an ALJ is not prohibited from making an RFC determination with certain limitations

that have not been specifically found by a medical expert. See Hayes v. Astrue, No. 07-710,

2007 WL 4456119, at *2 (E.D. Pa. Dec. 17, 2007).

While an ALJ does not need to rely on a specific opinion in making the RFC

determination, he or she must explain how the ultimate RFC finding is supported by

substantial evidence. Plaintiff contends that the ALJ should have further developed the

record before determining the RFC because the opinions as to Plaintiff’s functional abilities

were rendered years before Plaintiff’s diagnosis of degenerative disc disease. (Doc. No.

8, p. 14). However, Plaintiff overlooks that the decision to order a consultative

examination is within the sound discretion of the ALJ; while an ALJ may order a

consultative examination to resolve an inconsistency or if the record is insufficient to

render a decision, he or she is generally not required to do so. See 20 C.F.R. §§

404.1519a, 404.1520b; Thompson v. Halter, 45 Fed. Appx. 146, 149 (3d Cir. 2002). In

this case, the ALJ appropriately decided not to order a consultative examination to address

this recent evidence and instead considered evidence of Plaintiff’s degenerative disc

disease already in the record and incorporated it into the RFC finding. (R. 22).

Accordingly, Plaintiff’s argument that the ALJ was required to order a consultative

examination to address this recent evidence is without merit.

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Plaintiff goes on to argue that the ALJ’s RFC finding is not based on substantial

evidence because none of the opining medical sources had access to evidence that showed

Plaintiff’s degenerative disc disease. (Doc. No. 8, pp. 12-16). It is well-established that

an ALJ may find medical opinions persuasive even if those opinions were rendered before

other evidence became available. See Chandler, 667 F.3d at 361 (stating “[t]he Social

Security regulations impose no limit on how much time may pass between a report and the

ALJ’s decision in reliance on it.”). That said, it is also true that where there is a substantial

amount of new evidence between the date of a medical opinion upon which an ALJ relies

and the ALJ’s decision, remand may be warranted. See id.; Cadillac v. Barnhart, 84 Fed.

Appx. 163, 168-69 (3d Cir. 2003); Grimes v. Colvin, No. 15-133E, 2016 WL 246963, at

*2 (W.D. Pa. Jan. 21, 2016). Although Plaintiff believes that to be the case here, the Court

finds the ALJ’s finding to the contrary to be adequately supported by the record.

In this matter, the medical experts rendered their opinions in 2019, and Plaintiff

was diagnosed with degenerative disc disease in 2021. In August 2019, Virginia Dato,

M.D., concluded that Plaintiff retained the capacity for light work with postural,

manipulative, and environmental limitations. (R. 75-77). Also in August 2019,

consultative examiner Mary Donikowski, N.P. opined that Plaintiff could perform a

reduced range of light work and assessed manipulative, postural, and environmental

limitations. (R. 334-38). At the reconsideration level, in October 2019, Paul Fox, M.D.,

concluded Plaintiff could perform a reduced range of light work with postural,

manipulative, and environmental limitations. (R. 88-91). In April 2021, Plaintiff was

diagnosed with degenerative disc disease after a lumbar x-ray. (Ex. 12F/219). Based

on a review of all of the evidence, the ALJ found the opinions “somewhat persuasive[,]”

but generously crafted an RFC in Plaintiff’s favor based on all the evidence, stating,

“[h]owever, based on a complete review of the file, and to fully account for the later

suggestions of progressive neuropathy, the undersigned is finding the claimant limited to a

range of just sedentary exertional work throughout the period at issue.” (R. 23).

Significantly, the ALJ acknowledged Plaintiff’s diagnosis of degenerative disc

disease and incorporated this into Plaintiff’s RFC. First, the ALJ acknowledged

Plaintiff’s degenerative disc disease as a severe impairment at Step Two. (R. 14).

Second, the ALJ thoroughly analyzed Plaintiff’s medical records in April 2021, specifically

a lumbar x-ray showing degenerative disc disease but no acute abnormality. (R. 22 (citing

Ex. 12F/219)). The ALJ went on to note that Plaintiff received treatment for his back

pain consisting mostly of physical therapy and that later records showed that Plaintiff was

able to improve enough to mow the lawn, do yard work, and bike. (R. 22). Third, the

ALJ noted that Ryan Lynch, D.O., a neurologist, completed paperwork for Plaintiff to

obtain a rolling walker and single cane. (R. 22). In this way, the ALJ accounted for

Plaintiff’s diagnosis of degenerative disc disease in crafting Plaintiff’s RFC.

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

Judgment (Doc. No. 7) is DENIED, and Defendant’s Motion for Summary Judgment (Doc.

No. 13) is GRANTED.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

Accordingly, for the reasons set forth herein, the Court affirms the decision of the

ALJ.

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