ROBESON v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRIAN ROBESON, )

)

Plaintiff, )

)

v. ) Civil Action No. 23-944

)

MARTIN O’MALLEY,1 )

Commissioner of Social Security, )

)

Defendant. )

)

O R D E R

AND NOW, this 23rd day of May, 2024, upon consideration of the parties’ cross-

motions for summary judgment, the Court, after reviewing 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

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).

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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)).2

2 Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in assessing the

medical opinion evidence, in crafting Plaintiff’s mental residual functional capacity

(“RFC”), and in questioning the vocational expert (“VE”). (Doc. No. 10). Specifically,

Plaintiff contends that the ALJ erred by relying on inconsistent and unsupported medical

status examinations and by rejecting all consistent and supported specific evaluation and

examination findings from Plaintiff’s treating and examining providers. (Id. at 12-15).

Further, Plaintiff posits that the ALJ erred in assessing Plaintiff’s mental RFC by relying

on an inaccurate and unsupported lay interpretation of Plaintiff’s medical records. (Id. at

15-18). Lastly, Plaintiff asserts that the VE testimony was inadequate because it relied

on an incomplete RFC. (Id. at 18). For the following reasons, the Court disagrees and

affirms the ALJ’s finding of non-disability.

During the relevant period, Plaintiff suffered from a variety of mental impairments

including panic attacks, bipolar I disorder, attention deficit hyperactivity disorder

(“ADHD”), and generalized anxiety disorder. (Doc. No. 10 at 3-6). Evaluating

Plaintiff’s impairments during the relevant period, the ALJ crafted the following RFC:

[T]he claimant has the residual functional capacity to perform a full range

of work at all exertional levels. However, the claimant is capable of

understanding and remembering simple instructions; using judgment to

make simple work related decisions; and occasionally interacting with

supervisors, coworkers, and the public. He is capable of carrying out

simple instructions; performing work that does not require a specific

production rate such as assembly line work or work that requires hourly

quotas. He is capable of dealing with frequent changes in work setting;

and performing work that would never expose the claimant to dangerous

heights or machinery.

(R. 20). Using this RFC, the ALJ relied on VE testimony to find that other work existed

in the national economy that Plaintiff could perform. (R. 30-32).

The Court finds no merit to Plaintiff’s argument that this RFC was deficient. The

Court first rejects Plaintiff’s argument that the ALJ erred in assessing the medical opinion

evidence. The Court notes that 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.

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§ 404.1520c(a) (applying to later cases). 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. 5844-01 at 5853 (Jan. 18, 2017). See also 20 C.F.R. §§ 404.1520c(b) and (c).

One court has explained the distinction between supportability and consistency as follows:

“supportability relates to the extent to which a medical source has articulated support for the

medical source’s own opinion, while consistency relates to the relationship between a

medical source’s opinion and other evidence within the record.” Cook v. Comm’r of Soc.

Sec., No. 6:20-CV-1197, 2021 WL 1565832, at *3 (M.D. Fla. Apr. 6, 2021).

In this case, the ALJ reviewed many medical opinions assessing Plaintiff’s

psychological health. Among these was the opinion of Dr. Daniel Marston, Ph.D., ABPP,

who concluded that Plaintiff’s records were consistent with diagnoses of ADHD,

generalized anxiety disorder, and obsessive compulsive disorder (“OCD”); he also opined

that his clinical impression was consistent with Plaintiff’s diagnoses of ADHD and bipolar

disorder. (R. 477-79). Additionally, Dr. Lindsey Groves, Psy.D., performed a

psychological evaluation of Plaintiff and found that the results supported the conclusion

that Plaintiff had functional limitations and was unable to work at that time. (R. 485).

The prior administrative medical findings contained opinions from Dr. Erin Nicole

Urbanowicz, Psy.D., and Dr. Fasial Roberts, Psy.D., who both opined that Plaintiff was

mild and moderately limited in the paragraph B criteria. (R. 94-95, 114). The record

also contains a third-party statement from a forensic vocational expert, James Primm,

M.Ed., CRC, who opined that Plaintiff was unable to maintain attention for two-hour

segments, maintain regular attendance, make simple work-related decisions, complete a

normal workday, and get along with coworkers. (R. 423).

Turning to the first opinion, the ALJ’s analysis of Drs. Marston’s opinion was

logical and is supported by substantial evidence. The ALJ explained that Plaintiff

presented with ADHD and bipolar disorder and that this was echoed by the wider record.

(R. 26). However, the ALJ noted that the supportability and consistency of this opinion

was eroded because Dr. Marston “failed to provide a functional evaluation of the claimant’s

precise limitations . . . Thus, Dr. Marston’s clinical impression was too limited in scope to

be persuasive.” (Id.). The ALJ went on to explain that Dr Marston’s opined serious

limitations were “inconsistent with the wider record showing ‘no mood swings’ and good

mental status findings” and that Dr. Marston offered “[n]o detailed explanation . . . to

support such limitations . . . [and the] evaluation was noted to have internal inconsistencies

that would likewise detract from supportability.” (Id.). This was a sufficient

consistency and supportability analysis, as the ALJ analyzed the supportability of Dr.

Marston’s opinion in comparison to his own explanations for his opined limitations and

the consistency of his opinion in comparison to the wider record. See Cook, 2021 WL

1565832, at *3. Accordingly, the ALJ’s finding that Dr. Marston’s opinion was of “little

persuasive value” is supported by substantial evidence. (R. 26).

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The ALJ also sufficiently analyzed Dr. Groves’ opinion. The ALJ found this

opinion was “too limiting to be persuasive” because it was “not consistent with treatment

notes . . . [and] was not consistent with the record as a whole.” (R. 27). The ALJ

analyzed the supportability of Dr. Groves’ opinion by noting that Dr. Groves’ treatment

notes did not show that Plaintiff had any serious deficits, yet Dr. Groves opined that

Plaintiff “could not work at present[.]” (Id.). The ALJ also found this opinion was not

well supported as Dr. Groves “appeared too heavily influenced by an evaluation by Dr.

Coburn, which was remote, performed in April 2017, and lacked standard validity

measures.” (Id.). This was a sufficient consistency and supportability analysis to

support the ALJ’s decision finding this opinion of little persuasive value. (R. 26-27).

Additionally, the ALJ sufficiently analyzed the opinions of Drs. Urbanowicz and

Roberts. The ALJ found both of these opinions “somewhat persuasive” as they were

“supported by the detailed medical analysis showing no recent inpatient psychiatric

admissions and evidence of overall psychiatric stability in treatment notes.” (R. 24).

Further, the ALJ stated that these opinions were consistent with the wider record, noting,

“[t]he wider record was also generally consistent with limiting the claimant to at least

simple work and need for limitations in environment.” (Id.). Additionally, the ALJ

extended Plaintiff’s limitations beyond those opined by these doctors by “further limit[ing]

the claimant to have moderate limitations in all four broad areas of mental functioning.”

(R. 25). Accordingly, the ALJ’s analysis of Drs. Urbanowicz’ and Roberts’ opinions is

supported by substantial evidence.

Further, the ALJ sufficiently considered the third-party vocational statement of Mr.

James Primm, M.Ed., a forensic vocational expert. Mr. Primm prepared a report at the

request of Plaintiff’s counsel in connection with Plaintiff’s claim for short-term disability

benefits. (R. 422-23). He concluded that Plaintiff was unable to maintain attention for

two-hour segments, maintain regular attendance, make simple work-related decisions,

complete a normal workday, and get along with co-workers. (R. 423). In evaluating

this statement, the ALJ correctly explained that this was not a medical opinion that required

an evaluation of its persuasiveness. (R. 28); see 20 C.F.R. § 404.1513(a)(2). Despite

this, the ALJ analyzed this opinion thoroughly based on the supportability and consistency

factors. (R. 28-29). The ALJ concluded that Mr. Primm’s statement was neither

consistent nor supported because the wider record showed Plaintiff had no recent inpatient

psychiatric admissions, showed his mood was “really stable,” and his mental status

examinations were within normal limits. (Id.). Further, the statement was not supported

as Mr. Primm relied on conclusory statements of marked and significant impairments and

was based on medical opinions and statements rendered well before the relevant period.

(R. 28). This analysis is supported by substantial evidence.

The Court likewise finds no merit to Plaintiff’s argument that the ALJ inaccurately

determined Plaintiff’s mental RFC by failing to adequately consider Plaintiff’s bipolar

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disorder and panic attacks and by relying on an inaccurate and unsupported lay

interpretation of Plaintiff’s medical records. (Doc. No. 10 at 15-18). The Court notes

that in making an RFC determination, the ALJ must consider all the evidence before him.

See Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The ALJ must give an indication

of the evidence which he or she rejects and the reasons for discounting such evidence. See

id.; Cotter, 642 F.2d at 705. Additionally, “[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. §§ 404.1527(d)(2), 404.1546(c); SSR 96-5p, 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 need not have been found by a medical

expert). As the United States Court of Appeals for the Third Circuit explained in

Titterington, “[s]urveying the medical evidence to craft an RFC is part of the 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 adequately considered Plaintiff’s bipolar disorder and panic attacks

in determining his RFC. First, the ALJ noted that Plaintiff was suffering from Bipolar I

Disorder during the relevant period. (R. 16, 22). Despite this, the ALJ noted that

Plaintiff had “good mental status examination results” and “really stable mood with no

extremes of mood, no mood swings, no suicidal ideation, and okay sleep.” (R. 22-23).

Second, the ALJ noted that Plaintiff testified he had “panic attacks at least once and

sometimes twice per week . . . [and that these last] 45-60 minutes each time with severe

shaking, twitching, hyperventilating, and pain.” (R. 21). However, the ALJ found

Plaintiff’s testimony not credible. (R. 21-22). This was supported by the record

evidence, which showed that Plaintiff reported to his doctors that he had no panic attacks.

(R. 23-25, 28). Based on this, the ALJ exercised his discretion and did not account for

limitations in Plaintiff’s RFC to accommodate for Plaintiff’s bipolar disorder or panic

attacks beyond the existing limitations therein. See Rutherford v. Barnhart, 399 F.3d 546,

554 n.8 (3d Cir. 2005) (noting the RFC must only contain “credibly established

limitations”).

Moreover, the Court rejects Plaintiff’s argument that the ALJ relied on his own

inaccurate and unsupported lay interpretation of the record in crafting Plaintiff’s RFC.

Plaintiff’s argument is essentially that the ALJ should have ordered a consultative

examination on which to base the RFC given that the ALJ discounted many of the medical

opinions and failed to understand the nature of Plaintiff’s bipolar disorder and panic

attacks. However, Plaintiff overlooks that while an ALJ may order a consultative

examination to resolve an inconsistency or if the record is insufficient to render a decision,

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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. 12) is GRANTED.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

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). The decision whether to

order such an examination is within the sound discretion of the ALJ and “should be firmly

rooted in an assessment of the evidence as a whole.” Woodman v. Berryhill, Civ. No.

3:17-cv-151, 2018 WL 1056401, at *5 (M.D. Pa. Jan. 30, 2018); see Thompson, 45 Fed.

Appx. at 149. For essentially the same reasons stated above, there was no insufficiency

or inconsistency in the record that would suggest the need for a consultative examination

and/or review of the record. This is particularly true given an ALJ’s broad discretion in

regard to this issue.

Lastly, the Court rejects Plaintiff’s argument that the VE testimony was inadequate

because it relied on an incomplete RFC. 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, 399 F.3d at 554 n.8. Hypotheticals posed to

vocational experts need not reflect every impairment alleged by a claimant. See id. at

544. Instead, hypotheticals “must accurately convey to the vocational expert all of a

claimant’s credibly established limitations.” Id. Substantial evidence supports the

ALJ’s RFC assessment, as analyzed above, and because the operative hypothetical

accurately conveyed Plaintiff’s RFC, the ALJ appropriately relied upon the vocational

expert’s response. (See R. 20, 63).

For all these reasons, the Court affirms the decision of the ALJ.

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