# PHELPS v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · September 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10655790

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10655790

## How later opinions describe it (automated extraction)

- finding that the ALJ sufficiently evaluated the plaintiff’s testimony where “the ALJ devoted two pages to a discussion of claimant’s subjective complaints and cited Claimant’s daily activities and objective medical reports”
- stating that substantial evidence exists only “in relationship to all the other evidence in the record”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JASON P.,1

Plaintiff,
Case No. 1:21-cv-5323
v. Magistrate Judge Norah McCann King

KILOLO KIJAKAZI,
Acting Commissioner of Social Security,

Defendant.

OPINION AND ORDER

This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,
as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Jason P. for Supplemental
Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. Plaintiff
appeals from the final decision of the Commissioner of Social Security denying that application.2
After careful consideration of the entire record, including the entire administrative record, the
Court decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil Procedure and
Local Civil Rule 9.1(f). For the reasons that follow, the Court affirms the Commissioner’s
decision.
I. PROCEDURAL HISTORY
On April 30, 2018, Plaintiff filed his application for benefits, alleging that he has been
disabled since February 17, 2017. R. 77–78, 166–68. The application was denied initially and

1 The Committee on Court Administration and Case Management of the Judicial Conference of
the United States has recommended that, due to significant privacy concerns in social security
cases, federal courts should refer to plaintiffs in such cases by only their first names and last
initials. See also D.N.J. Standing Order 2021-10.
2 Kilolo Kijakazi, the Acting Commissioner of Social Security, is substituted as Defendant in her
official capacity. See Fed. R. Civ. P. 25(d).
1
upon reconsideration. R. 103–07, 112–14. Plaintiff sought a de novo hearing before an
administrative law judge (“ALJ”). R. 115. ALJ Daniel Shellhamer held a hearing on February
27, 2020, at which Plaintiff, who was represented by counsel, testified. R. 41–60. In a decision
dated July 7, 2020, the ALJ concluded that Plaintiff was not disabled within the meaning of the

Social Security Act from April 30, 2018, the date on which the application was filed, through the
date of that decision. R. 21–35. That decision became the final decision of the Acting
Commissioner of Social Security when the Appeals Council declined review on February 26,
2021. R. 1–7. Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On
July 20, 2021, Plaintiff consented to disposition of the matter by a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. ECF
No. 11.3 On April 20, 2022, the case was reassigned to the undersigned. ECF No. 28. The matter
is ripe for disposition.
II. LEGAL STANDARD
A. Standard of Review

In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). The United States Supreme Court has
explained this standard as follows:
Under the substantial-evidence standard, a court looks to an existing administrative
record and asks whether it contains sufficien[t] evidence to support the agency’s

3The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
2
factual determinations. And whatever the meaning of substantial in other contexts,
the threshold for such evidentiary sufficiency is not high. Substantial evidence, this
Court has said, is more than a mere scintilla. It means – and means only – such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.

Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations and quotation marks
omitted); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation and internal
quotations omitted); Bailey v. Comm’r of Soc. Sec., 354 F. App’x 613, 616 (3d Cir. 2009)
(citations and quotations omitted); K.K. ex rel. K.S. v. Comm’r of Soc. Sec., No. 17-2309, 2018
WL 1509091, at *4 (D.N.J. Mar. 27, 2018).
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
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whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists
only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is

overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of
Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see
K.K., 2018 WL 1509091, at *4. The ALJ’s decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although an ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the decision must contain “sufficient development of the
record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.

2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an
expression of the evidence s/he considered which supports the result, but also some indication of
the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121
(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication
of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Absent

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such articulation, the Court “cannot tell if significant probative evidence was not credited or
simply ignored.” Id. at 705. As the Third Circuit explains:
Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] decision is
supported by substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions reached are
rational.

Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016).
B. Sequential Evaluation Process
The Social Security Act establishes a five-step sequential evaluation process for
determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §
416.920(a)(4). “The claimant bears the burden of proof at steps one through four, and the
Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d
632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).

5
At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. § 416.920(b). If so, then the inquiry ends because the plaintiff is not
disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or

combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. § 416.920(c). If the plaintiff does not have a severe
impairment or combination of impairments, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §
416.920(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination
of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.
at § 416.909. Otherwise, the ALJ proceeds to step four.

At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 416.920(e), (f).
If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in
the national economy. 20 C.F.R. § 416.920(g). If the ALJ determines that the plaintiff can do so,
then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the

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impairment or combination of impairments has lasted or is expected to last for a continuous
period of at least twelve months.
III. ALJ DECISION AND APPELLATE ISSUES
Plaintiff was 34 years old on April 30, 2018, the application date. R. 34. At step one, the

ALJ found that Plaintiff had not engaged in substantial gainful activity between that date and the
date of the decision. R. 23.
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
cervical and lumbar degenerative disc disease, cervical radiculopathy, migraines, demyelinating
disease, obesity, depressive disorder, anxiety disorder, panic disorder, and neurocognitive
disorder. Id. The ALJ also found that Plaintiff’s diagnosed asthma and benign essential
hypertension were not severe impairments. R. 23–24.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of
impairments that met or medically equaled the severity of any Listing. R. 24–26.
At step four, the ALJ found that Plaintiff had the RFC to perform light work subject to

various additional limitations. R. 26–34. The ALJ also found that this RFC did not permit the
performance of Plaintiff’s past relevant work as a warehouse worker. R. 33–34 (explaining
further that the vocational expert classified as “other work” Plaintiff’s work as a cable installer,
sales agent/business service, and electronic equipment repairer because Plaintiff “did not perform
them long enough to satisfy the SVP requirements of the jobs”).
At step five and relying on the testimony of the vocational expert, the ALJ found that a
significant number of jobs—e.g., jobs as a produce weigher, a routing clerk, and an office helper—
existed in the national economy and could be performed by Plaintiff. R. 34–35. The ALJ
therefore concluded that Plaintiff was not disabled within the meaning of the Social Security Act

7
from April 30, 2018, the date on which Plaintiff’s application was filed, through the date of the
decision. R. 35.
Plaintiff disagrees with the ALJ’s findings at steps four and five; he also challenges the
constitutionality of the appointment of the Commissioner of Social Security and the impact of

that appointment on the decision at issue in this case. He asks that the decision be reversed and
remanded with directions for the granting of benefits or, alternatively, for further proceedings.
Plaintiff’s Memorandum of Law, ECF No. 15; Plaintiff’s Reply Brief, ECF No. 27. The Acting
Commissioner takes the position that her decision should be affirmed in its entirety because the
ALJ’s decision correctly applied the governing legal standards, reflected consideration of the
entire record, and was supported by sufficient explanation and substantial evidence. Defendant’s
Brief Pursuant to Local Civil Rule 9.1, ECF No. 25.
IV. SUMMARY OF RELEVANT MEDICAL EVIDENCE
A. Shaila Bokkala-Pinninti, D.O., Ph.D.
On May 14, 2018, Shaila Bokkala-Pinninti, D.O., Ph.D., Plaintiff’s treating neurologist,

completed a two-page, check-the-box, and fill-in-the-blank form entitled “Medical Source
Statement of Patient’s Ability to Perform Work-Related Physical Activities.” R. 538–39. In
response to the question how long Plaintiff can sit, stand, and walk in an eight-hour workday, Dr.
Bokkala-Pinninti wrote “N/A”. R. 538. Dr. Bokkala-Pinninti opined that Plaintiff could walk one
city block without resting or experiencing severe pain; could continuously sit and stand for 30
minutes at a time, after which he must walk, stand, and stretch; and could stand for 30 minutes,
after which time he must sit and lie down. Id. Plaintiff could sit and stand/walk for a total of less
than two hours in an eight-hour workday. Id. According to Dr. Bokkala-Pinninti, Plaintiff’s
severe pain requires that he taken ten unscheduled breaks, each lasting 20 minutes, during an

8
average workday. Id. She further opined that Plaintiff could occasionally lift and carry less than
10 pounds in a competitive work situation. Id. Dr. Bokkala-Pinninti also opined that Plaintiff
could use his hands for repetitive action such as simple grasping, pushing and pulling, and fine
manipulation, and could use his feet for such repetitive movements as operating foot controls. R.

539. Plaintiff could occasionally bend, stoop, squat, crawl, climb, and reach above shoulder
level, although Dr. Bokkala-Pinninti noted that doing so “may cause pain – cervical spondylosis
with radiculopathy.” Id. Plaintiff has “moderate” restrictions in the following activities: working
at unprotected heights, being around moving machinery, driving automotive equipment, being
exposed to marked changes in temperature, humidity, dust, and fumes, because Plaintiff has
“dizziness & vertigo & cervicogenic migraine[.]” Id. Plaintiff would likely be absent from work
approximately five days a month and his migraines would occasionally interfere with the
attention and concentration needed to perform even simple work tasks during a typical workday.
Id. Finally, Dr. Bokkala-Pinninti opined that “medications may limit his ability to drive heavy
machinery.” Id.

On the same day, Dr. Bokkala-Pinninti also completed a two-page, multiple-choice, and
check-the-box form entitled “Clinical Assessment of Pain.” R. 540–41. Dr. Bokkala-Pinninti
selected the following response: “Pain is present to such an extent as to be distracting to adequate
performance of daily activities or work.” R. 540. Physical activity such as walking, standing,
bending, stooping, moving of extremities, etc., would “likely” “[g]reatly increase[ ]” the degree
of pain experienced by Plaintiff, “and to such a degree as to cause distraction from the task or
even total abandonment of the task.” Addressing the degree to which medication(s) could be
expected to affect Plaintiff, Dr. Bokkala-Pinninti selected this response: “Some side effects can
be expected, but will only be mildly troublesome.” Id. Asked to what extent Plaintiff’s pain

9
would affect his ability to perform routine tasks on a productive basis (i.e., perform at production
levels expected by most employers) on a sustained basis, over an 8-hour day for a number of
weeks without frequent absences, Dr. Bokkala-Pinninti chose the following answer: “Pain can be
expected to be severe and to limit effectiveness due to distraction, inattentiveness, drowsiness,

etc.” Id. Asked to opine as to Plaintiff’s long-term prospects of recovery in regard to his pain, Dr.
Bokkala-Pinninti selected this response: “Although the level of pain may be less intense or less
frequent in the future, it will still remain a significant element in this individual’s life.” R. 541.
According to Dr. Bokkala-Pinninti, treatments for pain (e.g., biofeedback, nerve stimulation,
injections) “have had no appreciable impact or have only briefly altered the level of pain that this
patient experiences.” Id. Finally, Dr. Bokkala-Pinninti opined that Plaintiff “rarely” (meaning
1% to 5% of an eight-hour workday) experiences symptoms that interfere with the attention and
concentration needed to perform even simple work tasks during a typical workday. Id.
On February 12, 2020, Dr. Bokkala-Pinninti completed a six-page, check-the-box, and
fill-in-the-blank form entitled, “Multiple Sclerosis Residual Functional Capacity Questionnaire.”

R. 696–701. The doctor indicated that she saw Plaintiff every six months. R. 696. Asked whether
Plaintiff actually suffered from multiple sclerosis, Dr. Bokkala-Pinninti did not check the box
“Yes” or “No,” but instead provided the following response: “So far workup questionable for
MS & so yet definitively confirmed[.]” Id. Asked how the MS diagnosis was made, Dr. Bokkala-
Pinninti responded that it was “still being worked up.” Id. Dr. Bokkala-Pinninti indicated that
Plaintiff’s prognosis was fair and listed Plaintiff’s symptoms as fatigue, weakness, unstable
walking, and numbness/tingling or other sensory disturbances. Id. She denied that Plaintiff was a
malingerer. Id. Plaintiff did not have significant and persistent disorganization of motor function
in two extremities resulting in sustained disturbance of gross and dexterous movement or gait

10
and station or that he had significant reproducible fatigue of motor function with substantial
muscle weakness on repetitive activity demonstrated on physical examination, resulting from
neurological dysfunction in areas of the central nervous system known to be pathologically
involved by the multiple sclerosis process. R. 697. Asked the approximate dates of exacerbations

of multiple sclerosis in the prior year, Dr. Bokkala-Pinninti responded, “N/A No definitive DX
of MS.” Id. She indicated that Plaintiff complains of a type of fatigue that is best described as
lassitude rather than fatigue of motor function, which is typical of MS patients, but Dr. Bokkala-
Pinninti qualified that response by writing “could be.” Id. Dr. Bokkala-Pinninti denied that
emotional factors contributed to the severity of Plaintiff’s symptoms and functional limitations,
and indicated that Plaintiff’s impairments (physical or any emotional impairments) were
reasonably consistent with the symptoms and functional limitations described in her evaluation.
Id. According to Dr. Bokkala-Pinninti, Plaintiff’s experience of pain, fatigue, or other symptoms
were frequently severe enough to interfere with his attention and concentration. R. 698. She also
opined that Plaintiff could tolerate moderate stress, explaining that “[p]hysical exam is normal.”

Id. According to Dr. Bokkala-Pinninti, Plaintiff’s impairments had lasted or were expected to last
at least twelve months and that the earliest date to which Plaintiff’s symptoms and limitations
applied was three years. Id. In a competitive work situation, Plaintiff could walk three to four
city blocks without rest and could sit for 30 minutes at a time before needing to change position.
Dr. Bokkala-Pinninti provided no response to questions relating to Plaintiff’s abilities to stand at
one time, to stand/walk total in an eight-hour workday, to shift positions at will, nor did she
indicate whether Plaintiff would need to take work breaks or to elevate his legs with prolonged
sitting, how many pounds that Plaintiff could lift and carry, how often Plaintiff could twist,
stoop/bend, crouch, climb ladders, climb stairs, or whether Plaintiff had any significant

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limitations in repetitive reaching, handling, or fingering. R. 699–700. According to Dr. Bokkala-
Pinninti, Plaintiff should avoid even moderate exposure to extreme cold, extreme heat, wetness,
humidity, and noise, and he should avoid all exposure to fumes, odors, dusts, gases, poor
ventilation, etc. and hazards (machinery, heights, etc.). R. 701. Finally, Dr. Bokkala-Pinninti

opined that Plaintiff would likely be absent from work more than four days per month as a result
of his impairments or treatment of those impairments. Id.
B. Samuel Sarmiento, M.D.
On July 31, 2018, Samuel Sarmiento, M.D., performed a consultative neurological
examination of Plaintiff. R. 609–16. Dr. Sarmiento noted that Plaintiff reported social security
benefits based on migraine headaches and seizures. R. 609. Plaintiff reported that “he had a
seizure twice, one in mid and late 2017. He states that he became unconscious and was shaking
and was brought to the emergency room and was discharged. He was diagnosed with seizure
disorder in June 2017 by the neurologist. He is not on any seizure medication.” R. 610. Plaintiff
reported that he was taking the following medications: Propranolol, tramadol, Prozac,

clonazepam, and Flexeril. Id. Under the heading, “Functional Status,” Dr. Sarmiento noted as
follows: “He has a valid driver’s license. He can drive by himself. He can climb up and down a
few steps. He is unable to walk a block.” R. 611. Dr. Sarmiento observed that Plaintiff was well-
nourished and in no acute distress, was able to get one and off the examining table, was able to
dress himself, and was comfortable in a seated position during the interview. Id. Upon
examination of the extremities and the spine, Dr. Sarmiento noted as follows:
Upper Extremities
Evaluation of the upper extremities showed full range of motion of the shoulders,
elbows, wrists, and hands bilaterally. Pinch strength and grip strength were 5/5
bilaterally. Muscle strength of the upper extremities, including the biceps and
triceps, were graded at 5/5 bilaterally. The claimant was able to extend his fingers,
make a fist, and oppose the thumbs bilaterally. There was no atrophy, rigidity,
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involuntary movements or tremor.

Lower Extremities
Evaluation of the lower extremities showed full range of motion of the hips, knees,
and ankles bilaterally. Muscle strength was 5/5 in the lower extremities in hip
flexion, leg flexion, leg extension, ankle dorsiflexion, and ankle plantar flexion
bilaterally.

* * *

Cervical Spine
Evaluation of the cervical spine showed decreased range of motion on flexion at 40
degrees, extension at 40 degrees, side-bending (lateral flexion) at 35 degrees
bilaterally, and rotation at 60 degrees bilaterally. There was cervical tenderness.
The cervical spine showed a normal lordotic curve.

Lumbar Spine
Evaluation of the lumbosacral spine showed decreased range of motion on
extension at 10 degrees. There was lumbar tenderness. The lumbar spine showed a
normal lordotic curve. There was a negative straight leg raising test both in supine
and sitting positions.

Id. Dr. Sarmiento went on to perform a neurological evaluation, noting as follows:
Evaluation of Cranial Nerves
II: Visual acuity is normal. Visual fields are intact to confrontation. Pupillary light
reflex was intact. Pupils were equal, round, and reacted to light and
accommodation.

III, IV, VI: Extra-ocular movements were full throughout, without nystagmus. No
ptosis.

V: The motor and sensory function of the trigeminal nerve was intact.

VII: There was no facial asymmetry. The examinee was able to smile, frown, raise
his eyebrows, close his eyes against resistance, and puff out both cheeks.

VIII: The examinee was able to hear finger rubs bilaterally.

IX: The gag reflex was not tested.

X: The palate and uvula elevate symmetrically bilaterally.

XI: The Spinal Accessory Nerve motor function to the Sternocleidomastoid and
Trapezius muscle was intact bilaterally.

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XII: The tongue was midline and mobility was normal without atrophy or
fasciculations.

R. 614. There was decreased sensation to touch and pinprick in the right arm and decreased
sensation to touch and pinprick on the right leg and decreased sensation to touch in the right side
of the face. Id. Plaintiff’s biceps, triceps, and brachioradialis deep tendon reflexes were 2+
bilaterally and symmetric; patella and Achilles deep tendon reflexes were 2+ bilaterally and
symmetric; pathological reflexes, including Babinski’s, were negative bilaterally. Id. Plaintiff
was able to walk with a normal gait and without a limp; he did not require the use of an
ambulation aide and was able to heel walk, toe walk, and squat without difficulty; his hand-eye
coordination was good. Id. Romberg testing was normal with both eyes open and closed and
finger to nose and rapid alternating movement test were normal in both upper extremities. Id.
Upon mental evaluation, Dr. Sarmiento noted that Plaintiff was awake, alert, and oriented times
2; he was cooperative during the examination, and had a normal mood, affect, and concentration.
Id. There was no abnormality of thought processing and contact; he was unable to spell “world”
backward; and his short-term memory was 1/3 objects recalled after five minutes, but his long-
term memory was intact. R. 612, 614. Plaintiff’s speech was clear and coherent; his thought
process was goal-directed; his comprehension and repetition functions were intact; there was no
aphasia, stuttering, or involuntary vocalizations; and there was no evidence of right-left
confusion. R. 612. Dr. Sarmiento diagnosed migraine headaches and a history of seizures. Id. Dr.

Sarmiento summarized his findings and opinions as follows:
SUMMARY
The claimant is a 35-year-old male, blood pressure 130/85, pulse 88, respiration 18,
right-handed. He is not in any distress. here are no significant motor impairments
of his upper extremities. He was able to handle fine and gross manipulation,
including the handling of fine and small objects. Grip strength and pinch strength
was 5/5 and equal bilaterally. There are no significant motor deficits in his lower
extremities. He has decreased sensation to touch and pinprick in the right arm and
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decreased sensation to touch and pinprick in the right leg. He ambulated well
without the use of any handheld devices. He has decreased sensation to touch in the
right side of the face. His mental evaluation is oriented times 2. His short-term
memory is 1/3.

CONCLUSION
He would be able to walk and stand for a reasonable amount of time with needed
breaks. He would be able to sit for a reasonable amount time with needed breaks.
No significant balance limitations were observed during the evaluation. He has
good functionality of his right and left hands. He would be able to handle fine and
small sized objects. He has no significant limitations to fingering such as picking
and pinching objects.

Id. When completing a “Passive Range of Motion Chart” as part of the neurological examination,
Dr. Sarmiento indicated that Plaintiff had 5/5 bilateral grip strength and 5/5 bilateral pinch
strength and he indicated that Plaintiff could fully extend his hands, make a fist with his hands;
and could oppose his fingers on both hands, separate papers, and button buttons. R. 615. Plaintiff
had lateral flexion 35/75; flexion 40; and extension 40. Id. Straight leg raising test in the supine
position was 50 on the right and left. R. 616. Plaintiff was able to squat, walk on his heels, walk
on his toes, and walk at a reasonable pace without a hand-held assistive device. Id.
On December 12, 2018, Dr. Sarmiento conducted another consultative neurological
examination. R. 652–58. Dr. Sarmiento noted that Plaintiff had applied for social security
benefits based on his seizures and migraine headaches. R. 652. Plaintiff reported a diagnosis of
seizures in 2014 and that they occur only when sleeping. Id. Plaintiff reported one seizure every
couple of months, the most recent in October 2018 and July 2018. R. 652. Dr. Sarmiento noted
that an April 2017 MRI showed hyperintensity compatible with demyelinating disease, but no
evidence of active demyelination. Id. Plaintiff also reported a diagnosis of migraine headaches in
2014 and that he experiences headaches every day, each lasting 5 to 24 hours. R. 653. Plaintiff
stated that he had been to the emergency room for headaches twice that year and three times in
the prior year. Id. Although he cannot do simple laundry and simple cleaning, he can go to a
15
store or office by himself or with someone else, can feed himself, make simple meals, dress
himself and take off and put on his shoes; he can brush his teeth and can shower or bathe. Id.
Upon physical examination, Dr. Sarmiento noted that Plaintiff was well nourished and in no
acute distress; was able to get on and off the examining table; could dress himself; and was

comfortable in a seated position during the interview. R. 654. Upon examination of the
extremities and the spine, Dr. Sarmiento found as follows:
Upper Extremities
There was no significant spasticity, rigidity, involuntary movements, or tremor.
Evaluation of the upper extremities showed full range of motion of the shoulders,
elbows, wrists, and hands bilaterally. Pinch strength and grip strength were 5/5
bilaterally. Muscle strength of the upper extremities, including the biceps and
triceps, were graded at 5/5 bilaterally. There is decreased sensation to touch and
pinprick in the left arm and the left hand. Biceps, triceps, and brachioradialis deep
tendon reflexes were 2+ bilaterally symmetric.

Lower Extremities
There was no significant spasticity, rigidity, involuntary movements, or tremor.
Evaluation of the lower extremities showed full range of motion of the hips, knees,
and ankles bilaterally. Muscle strength was 5/5 in the bilateral lower extremities,
including gluteus, ileo-psoas, quadriceps, hamstrings, calf, and dorsiflexors. Patella
and Achilles deep tendon reflexes were 2+ bilaterally symmetric. There is
decreased sensation to touch and pinprick in the left leg and the left foot.

* * *

Cervical Spine
Evaluation of the cervical spine showed decreased flexion at 40 degrees, decreased
extension at 30 degrees, decreased lateral flexion at 30 degrees bilaterally, and
decreased rotation at 60 degrees bilaterally. There was cervical tenderness. The
cervical spine showed a normal lordotic curve.

Lumbar Spine
Evaluation of the lumbosacral spine showed decreased flexion at 30 degrees,
decreased extension at 10 degrees, decreased lateral flexion at 10 degrees
bilaterally, and decreased rotation at 10 degrees bilaterally. There is lumbar
tenderness. The lumbar spine showed a normal lordotic curve. There was no lower
back pain or radicular symptoms on sitting straight leg raising maneuver test. There
was no lower back pain or radicular symptoms on supine straight leg raising
maneuver test.

16
Id. On neurological evaluation, Dr. Sarmiento found as follows:
Evaluation of Cranial Nerves
II: Visual acuity: Right 20/30, left 20/25, both eyes 20/25 without glasses. Visual
fields were intact to confrontation. Pupillary light reflex was intact. Pupils were
equal, round, and reacted to light and accommodation.

III, IV, VI: Extra-ocular movements were full throughout, without nystagmus. No
ptosis.

V: The motor and sensory function of the trigeminal nerve was intact.

VII: There was no facial asymmetry. The examinee was able to smile, frown, raise
his eyebrows, close his eyes against resistance, and puff out both cheeks.

VIII: The examinee was able to hear finger rubs bilaterally.

IX: The gag reflex was not tested.

X: The palate and uvula elevate symmetrically bilaterally.

XI: The Spinal Accessory Nerve motor function to the Sternocleidomastoid and
Trapezius muscle was intact bilaterally.

XII: The tongue was midline and mobility was normal without atrophy or
fasciculations.

R. 655. Plaintiff could walk with a normal gait without a limp; he did not require the use of an
ambulation aide and was able to heel walk, toe walk, and squat without difficulty; his hand-eye
coordination was good. Id. Romberg testing was normal with both eyes open and closed and
finger to nose and rapid alternating movement test were normal in both upper extremities. Id.
Upon mental examination, Dr. Sarmiento noted that Plaintiff was awake, alert, and oriented to
time, place, and person; was cooperative during the examination; had a normal mood, affect, and
concentration. Id. There was no abnormality of thought processing and thought contact; he was
able to spell “world” backward; his short-term memory was intact with 2/3 objects recalled after
five minutes; and his long-term memory was intact. Id. His speech was clear and coherent; his
thought process was goal-directed; his comprehension and repetition functions were intact; there
17
was no aphasia, stuttering, or involuntary vocalizations; and there was no evidence of right-left
confusion. Id. Dr. Sarmiento diagnosed seizures, migraine headaches, and hypertension
(directing Plaintiff to seek immediate medical attention). Id. Dr. Sarmiento summarized his
findings and opinions as follows:

SUMMARY
Claimant is a 35-year-old male who is not in any distress. Blood pressure 168/96,
pulse 76. There is no significant motor impairment of both upper extremities. There
is decreased sensation to touch and pinprick in the left arm and left hand. He was
able to handle fine and gross manipulations, including the handling of fine and
small objects. Grip strength and pinch strength were 5/5 equal bilaterally. There is
no significant motor deficits of both lower extremities. There is decreased sensation
to touch and pinprick in the left leg and left foot. He ambulated well without the
use of any handheld devices. In addition, his mental status is oriented x3. His short-
term memory is 2/3. He was able to spell the word “world” backward. He has a
negative Romberg and negative coordination evaluation.

CONCLUSION
He would be able to walk and stand for a reasonable amount of time with needed
breaks. He would be able to sit for a reasonable amount time with needed breaks.
No significant balance limitations were observed during the evaluation. He has
good functionality of his right and left hands. He would be able to handle fine and
small sized objects. He has no significant limitations to fingering such as picking
and pinching objects.

R. 656.
C. Lawrence G. Mintzer, Ph.D.
On August 9, 2018, Lawrence G. Mintzer, Ph.D., conducted a consultative psychological
examination. R. 619–23. Plaintiff reported to Dr. Mintzer that he had suffered three separate
incidents of head trauma: In 2007, he was a passenger in a vehicle that was struck by a tractor-
trailer; in 2014, a shelving unit collapsed, causing a 150-pound nightstand to fall about 9 feet and
strike Plaintiff; and in May 2015, while unloading a truck, a 150-pound recliner sofa fell on his
head and neck. R. 619. Upon mental status examination, Dr. Mintzer noted that Plaintiff was
oriented to person, place, and time; was casually dressed and adequately groomed; his motor
18
activity was appropriate and relaxed; his speech and mood were within normal limits; and his
affect was appropriate to the situation. R. 621. Plaintiff had never experienced either auditory or
visual hallucinations; his thought processes were goal-directed, and his speech was coherent with
no indications of any delusional thoughts. Id. There was no evidence of any homicidal or suicidal

thoughts and Plaintiff had never attempted suicide. Id. There were no ideas of reference or
phobias. Id. Plaintiff’s abstract thinking was fairly good, his fund of general knowledge was fair,
and his capacity to perform simple calculations was good. Id. Dr. Mintzer characterized
Plaintiff’s concentration as fair (e.g., he performed serial sevens just a bit slowly, making one
error while doing them). Id. Plaintiff was able to correctly spell the word “world” forwards, but
could not correctly spell it backwards. Id. Dr. Mintzer estimated that Plaintiff’s intelligence was
in the average range. Id. Plaintiff’s remote memory was good, but his recent memory was poor:
he was able to recall none of three items after one minute and after five minutes. Id. He was
unable to recall what he had eaten for dinner on the evening prior to the examination. Id.
Plaintiff’s immediate retention and recall were fair to somewhat poor (e.g, he was able to repeat

four digits forward and four digits in reverse). Id. Dr. Mintzer characterized Plaintiff’s impulse
control as fair (e.g., when he got angry at himself, he sometimes yelled). Id. His social judgment
was poor (e.g., if he found an envelope on the street that was sealed, addressed, and had a new
stamp, he would “ignore it”). Id. Dr. Mintzer characterized Plaintiff’s insight as good. Id. Dr.
Mintzer diagnosed an unspecified depressive disorder, social anxiety disorder, and mild
neurocognitive disorder due to traumatic brain injuries. Id. Dr. Mintzer assessed the severity of
Plaintiff’s condition as follows: “[Plaintiff] has an illness that is expected to last for the next 12
months. [Plaintiff’s] limitations are caused by a combination of physical health problems,
psychological problems, and a mild cognitive impairment. Overall, [Plaintiff’s] limitations are

19
moderate to severe in degree.” Id. According to Dr. Mintzer, Plaintiff’s prognosis was guarded,
although he was able to manage his personal funds in a competent manner. R. 622.
On January 10, 2019, Dr. Mintzer conducted a second consultative psychological
examination. R. 661–65. Dr. Mintzer noted that Plaintiff had never undergone outpatient mental

health treatment or psychiatric hospitalization. R. 662–63. Upon mental status examination, Dr.
Mintzer noted that Plaintiff was oriented to person, place, and time; was casually dressed and
adequately groomed; his motor activity was appropriate and relaxed; and his speech was normal.
R. 663. Dr. Mintzer noted that Plaintiff seemed a bit depressed and his affect was mildly
constricted. Id. Plaintiff had never experienced either auditory or visual hallucinations; his
thought processes were goal-directed, and his speech was coherent with no indications of any
delusional thoughts. Id. There was no evidence of any homicidal or suicidal thoughts and
Plaintiff had never attempted suicide. Id. Plaintiff did not experience any ideas of reference. Id.
However, Plaintiff “experiences anxiety when he leaves his house. He experiences anxiety when
he is out in public.” Id. According to Dr. Mintzer, Plaintiff’s abstract thinking was fairly good;

his fund of general knowledge was fair; and his capacity to perform simple calculations was fair.
Id. Plaintiff’s concentration was fair, and he was able to correctly spell the word “world”
forwards, but could not correctly spell it backwards. Id. Dr. Mintzer estimated that Plaintiff’s
intelligence was in the average range. Id. Plaintiff’s remote memory was good, but his recent
memory was poor. Plaintiff’s immediate retention and recall were poor. Plaintiff’s impulse
control was good and his social judgment was fair; his insight was good. Id. Dr. Mintzer assessed
the severity of Plaintiff’s condition as follows: “[Plaintiff] has an illness that is expected to last
for the next 12 months. [Plaintiff’s] limitations are caused by a combination of physical health
problems, psychological problems, and a mild cognitive impairment. Overall, [Plaintiff’s]

20
limitations are moderate to severe in degree.” R. 664. According to Dr. Mintzer, Plaintiff’s
prognosis was guarded although he was able to manage his personal funds in a competent
manner. Id.
V. DISCUSSION

A. RFC, Medically Determinable Impairments, and Opinion Evidence
Plaintiff argues that substantial evidence does not support the ALJ’s RFC for a limited
range of light work because the ALJ failed to properly consider Plaintiff’s history of seizures,
tremors, and post-concussion syndrome; failed to properly evaluate his mental impairments at
different stages of the sequential evaluation; and failed to properly consider the opinion evidence
in the record. Plaintiff’s Memorandum of Law, ECF No. 15, pp. 11–26; Plaintiff’s Reply Brief,
ECF No. 27, pp. 1–11. For the reasons that follow, Plaintiff’s arguments are not well taken.
A claimant’s RFC is the most that the claimant can do despite his limitations. 20 C.F.R. §
416.945(a)(1). At the administrative hearing stage, it is the ALJ who is charged with determining

the claimant’s RFC. 20 C.F.R. § 416.946(c); see also Chandler v. Comm’r of Soc. Sec., 667 F.3d
356, 361 (3d Cir. 2011) (“The ALJ—not treating or examining physicians or State agency
consultants—must make the ultimate disability and RFC determinations.”) (citations omitted).
When determining a claimant’s RFC, the ALJ has a duty to consider all the evidence. Plummer
v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). However, the ALJ need include only “credibly
established” limitations. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005); see also
Zirnsak v. Colvin, 777 F.3d 607, 615 (3d Cir. 2014) (stating that the ALJ has discretion to choose
whether to include “a limitation [that] is supported by medical evidence, but is opposed by other
evidence in the record” but “[t]his discretion is not unfettered—the ALJ cannot reject evidence
of a limitation for an unsupported reason” and stating that “the ALJ also has the discretion to

21
include a limitation that is not supported by any medical evidence if the ALJ finds the
impairment otherwise credible”).
In the case presently before the Court, the ALJ determined that Plaintiff had the RFC to
perform a limited range of light work:

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b) except never climb ladders, ropes, or scaffolds; occasionally climb
ramps or stairs, balance, stoop, kneel, crouch, and crawl; avoid all exposure to
temperature extremes, unprotected heights and moving mechanical parts; able to
understand, remember, and carry out simple routine instructions and simple work
related tasks in a low stress work environment, defined as only occasional changes
to settings, processes, and tools, and occasional independent decision making; goal
oriented rather than production paced tasks; and occasional interaction with the
public, supervisors, and coworkers.

R. 26. In making this determination, the ALJ detailed years of medical evidence including, inter
alia, a 2007 motor vehicle accident that resulted in post concussive syndrome after a closed head
injury; MRIs that confirmed cervical and lumbar degenerative disc disease and EMGs that
confirmed cervical radiculopathy; a 2015 work injury in which a heavy sofa fell on his head;
treatment in 2016 for chronic migraines, neck pain, and anxiety; an April 2017 MRI of the brain
that showed T2/flair hyperintensities consistent with demyelinating disease and a CT scan that
showed a focus of hypoattenuation in the deep subcortical white matter of the right parietal lobe
likely due to prior demyelination; a May 2018 examination that revealed marked tenderness over
the occipital region of the head, decreased cervical and lumbar range of motion, and marked
tenderness, muscle spasm, weakness of the right arm, and tenderness of the right shoulder,
positive impingement, decreased right shoulder range of motion, and positive straight leg raising;
Dr. Sarmiento’s July and December 2018 consultative examinations that revealed decreased
cervical and lumbar range of motion, tenderness, and decreased sensation in the right arm and
leg, and left arm, hand, leg and foot, but strength of 5/5, a normal gait, negative straight leg
22
raising, and otherwise normal neurological evaluations; the fact that Plaintiff reported during a
January 2019 evaluation that he felt better subjectively, but that he still had some residual
intermittent localized neck pain and stiffness; that he was able to get on and off the examination
table and change positions without discomfort, had full cervical range of motion, intact reflexes,

strength of 5/5, good grip and pinch strength and intact sensation; that although Plaintiff had
subjective complaints, there were no positive objective findings on physical examination; during
a neurological evaluation that same month, Plaintiff reported neck and lumbar pain, daily head
pain, and coldness in his upper extremities and positive Tinel’s, variable sensation in the upper
extremities, and lumbering gait without ataxia; however, the examination suggested mild ulnar
neuropathy but demonstrated no objective neurological findings and no objective evidence of
cervical radiculopathy or migraines; that Plaintiff, who is 6 feet tall, is obese, weighing 290
pounds in October 2019. R. 27–30. The ALJ went on to explain his RFC determination as
follows:
Based on the foregoing, the undersigned finds the claimant has the above residual
functional capacity assessment, which is supported by the available medical
evidence of record since the application date. The claimant has remote history of
work related injuries with resultant degenerative disc disease, radiculopathy,
migraines, and demyelinating disease. The claimant is also obese. He has had
various workers’ compensation evaluations, but limited treatment since the
application date. The most recent workers’ compensation evaluations showed no
positive objective medical findings. The claimant appears to manage his chronic
pain and migraines with primary care follow up and medication management alone.
He has had no pain management care, surgeries, injections, or hospitalizations for
his impairments. Accordingly, his residual pain and obesity would be
accommodated by restrictions for light work with additional postural and
environmental limitations. No additional limitations are warranted based on the
claimant’s limited treatment since the application date.

While the physical examinations suggest some limitations in the upper extremities
due to radiculopathy, generally the claimant has had intact strength throughout with
only intermittent loss of sensation. Any limitations in the upper extremities can be
accommodated by light lifting restrictions. Manipulative limitations are not
warranted as there is a lack of any positive objective medical findings or EMG’s
23
since the application date. The most recent examinations in 2019 show no
neurological deficits and even suggest that radiculopathy is not consistent with his
examination. Therefore, the assigned limitations in the above residual functional
capacity accommodate all of the claimant’s objective limitations.

Similarly, the claimant’s mental impairments have been managed by primary care
follow up and medications alone. There is no outpatient or inpatient psychiatric
treatment since the application date and no cognitive treatment for the claimant’s
neurocognitive disorder. The claimant remains functional in daily activities with
assistance from his mother. His mental status examinations suggest that limitations
for simple low stress work with limited social interactions are appropriate. No
additional limitations are warranted based on his lack of treatment.

In finding the claimant’s allegations to be only partially consistent with the
claimant’s subjective allegations, the undersigned finds that the claimant retains the
residual functional capacity for light simple work outlined above.

R. 33. In the view of this Court, this record contains substantial evidence to support the ALJ’s
RFC determination. See Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d at 554.
Plaintiff, however, challenges this determination on a number of bases. Plaintiff first
argues that the ALJ failed to properly consider his history of seizures. Plaintiff’s Memorandum
of Law, ECF No. 15, pp. 14–15; Plaintiff’s Reply Brief, ECF No. 27, pp. 1–2. Specifically,
Plaintiff complains that the ALJ erred in not finding that history to be severe at step two of the
sequential evaluation process and “made no mention of how” this impairment was considered at
step four. Plaintiff’s Memorandum of Law, ECF No. 15, pp. 14–15. For her part, the Acting
Commissioner notes that the ALJ expressly considered Dr. Sarmiento’s diagnosis of seizures at
step four and, although Dr. Sarmiento diagnosed Plaintiff’s seizures based on Plaintiff’s own
report, that physician did not assess any seizure-related limitations. Defendant’s Brief Pursuant
to Local Civil Rule 9.1, ECF No. 25, p. 23 (citations omitted). The Acting Commissioner also
notes that the state agency reviewing medical consultants considered Plaintiff’s history of
seizures when finding that Plaintiff could perform a range of light work with postural and
environmental limitations, opinions that the ALJ found to be persuasive. Id. Plaintiff replies that
24
“just because the State Agency medical consultants considered the Plaintiff’s history of seizures,
does not automatically make it so that the ALJ considered the Plaintiff’s limitations from his
seizures simply because he found their opinions persuasive.” Plaintiff’s Reply Brief, ECF No. 27,
p. 1. Plaintiff goes on to argue that, although the ALJ may have considered limitations opined by

the state agency medical consultants, “the only diseases mentioned by the ALJ in his defense of
the RFC’s physical limitations are Plaintiffs degenerative disc disease, radiculopathy, migraines,
obesity, and demyelinating disease[,]” leaving subsequent reviewers unclear whether the
limitations from his seizures were considered or ignored altogether. Id. (citing R. 33).
Although the ALJ did not discuss Plaintiff’s seizure history at step two of the sequential
evaluation process, R. 23–24, any error in this omission is harmless because the ALJ continued
to evaluate Plaintiff’s seizures, or the manifestations of that impairment, through the remainder
of the five-step sequential evaluation process. R. 26–35; cf. Salles v. Comm’r of Soc. Sec., 229 F.
App’x 140, 145 n.2 (3d Cir. 2007) (finding that, even if the ALJ had erroneously concluded that
other impairments were not severe at step two, any such error is harmless where the ALJ found

in the claimant’s favor at step two); Hicks v. Colvin, No. 2:15-cv-07221, 2016 WL 8674251, at
*8 (D.N.J. Oct. 14, 2016) (“Even if the ALJ had in fact erred with respect to one of the
impairments that she found to be non-severe, such error would be harmless since she found other
impairments to be severe, engaged in the full five-step evaluation, and accounted for related
possible limitations in her RFC finding.”). At step four, the ALJ expressly discussed that
Plaintiff believed that he had a seizure while sleeping in April 2017, and while Plaintiff followed
up for treatment of seizures, an EEG was normal. R. 28. The ALJ also acknowledged that
Plaintiff reported seizures to Dr. Sarmiento during the latter’s consultative examination and that,
although Dr. Sarmiento diagnosed Plaintiff with seizures and migraines based on Plaintiff’s self-

25
reports, the examination was otherwise generally normal. R. 29. Notably, as the Acting
Commissioner points out, Dr. Sarmiento assessed no seizure-related functional limitations. R.
609–16; 652–58. Moreover, the ALJ was persuaded by the findings of the state agency reviewing
medical consultants who expressly considered Plaintiff’s history of seizures but nevertheless

concluded that Plaintiff could perform a range of light work with postural and environmental
limitations. R. 32, 66–67, 69–71, 75, 87, 90–93, 96. Plaintiff complains that the ALJ’s finding
that these state agency opinions were persuasive does not establish that the ALJ properly
considered Plaintiff’s limitations resulting from his seizures; however, Plaintiff cites to no
medical evidence documenting how this condition impairs his functioning or results in greater or
different restrictions than those found by the ALJ and which would lead to a different outcome.
Accordingly, the ALJ’s failure to expressly discuss Plaintiff’s seizure history at step two, and his
discussion of that history is, at most, harmless error and does not require remand. See Shinseki v.
Sanders, 556 U.S. 396, 409–10 (2009) (“[T]he burden of showing that an error is harmful

normally falls upon the party attacking the agency’s determination. . . . [T]he party seeking
reversal normally must explain why the erroneous ruling caused harm.”); Rutherford, 399 F.3d at
553 (finding that “a remand is not required here because it would not affect the outcome of the
case”); Chetoka v. Colvin, No. CIV.A. 13-941, 2014 WL 295035, at *13 (W.D. Pa. Jan. 27,
2014) (“Although Plaintiff is correct that the ALJ did not provide a discussion of her alleged
sleep disturbances, hypertension, and bipolar disorder, this omission was not error. . . . None of
the sources that examined Plaintiff or her medical records attributed any limitations to these
alleged impairments.”).
Next, Plaintiff argues that the ALJ erred in failing to find at step two that Plaintiff’s
tremors are severe and complains that the ALJ did not discuss those tremors at step four when

26
fashioning the RFC. Plaintiff’s Memorandum of Law, ECF No. 15, pp. 14–15; Plaintiff’s Reply
Memorandum, ECF No. 27, pp. 2–4. According to Plaintiff, the record indicates that he has
postural and action tremors in his hands, “much more prominent in the right hand, diffuse pain,
and fatigue in addition to essential tremors in his sleep.” Plaintiff’s Memorandum of Law, ECF

No. 15, p. 14 (citations omitted). Plaintiff further contends that, when he wakes up after a tremor,
his joints are clenched, his head is foggy, and he is unable to concentrate. Id. at 14–15 (citations
omitted). Plaintiff argues that, although he was prescribed propranolol for his tremors, “it has
been ineffective.” Id. at 15 (citations omitted). Plaintiff goes on to argue that the ALJ “made no
mention of how” he considered this impairment when crafting the RFC. Id. In response, the
Acting Commissioner points out that the ALJ acknowledge that Plaintiff’s neurologist noted that
Plaintiff had mild postural tremors in his hands during an examination in April 2018.
Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 25, p. 23. The Acting
Commissioner also notes that the ALJ considered Dr. Sarmiento’s July and December 2018
consultative examinations which revealed no involuntary movements or tremors and that

Plaintiff enjoyed normal coordination full grip strength, and the ability to engage in fine and
gross manipulation. Id. (citing R. 611, 653). The ALJ also found persuasive Dr. Sarmiento’s
opinion that Plaintiff had good functionality of his hands, could handle fine and small sized
objects, and had no significant limitation in fingering, such as in picking up and pinching objects.
Id. (citing R. 612, 656). The ALJ explained that manipulative limitations were not warranted
because of the lack of objective medical findings or EMGs since the date on which Plaintiff filed
his application for benefits. Id. at 23–24 (quoting R. 33). Plaintiff argues in reply that “there is no
requirement that a person with tremors must be diagnosed using objective medical findings.”
Plaintiff’s Reply Brief, ECF No. 27, p. 2 (quoting “Essential tremor – Diagnosis and treatment –

27
Mayo Clinic,” which states, inter alia, “There are no medical tests to diagnose essential tremor.
Diagnosing it is often a matter of ruling out other conditions that could be causing your
symptoms.”). Plaintiff further notes that even the ALJ conceded that a neurologist’s examination
revealed that Plaintiff suffered tremors and that the record reflects that he had postural and action

tremors in his hands. Id. at 3. Plaintiff goes on to argue that the Acting Commissioner’s reliance
on Dr. Sarmiento’s physical examination findings amounts to post hoc rationalization and does
not cure the ALJ’s error in failing to discuss Plaintiff’s tremors and associated limitations. Id. at
3–4.
The Court is not persuaded that this issue requires remand. As a preliminary matter, for
the reasons previously discussed, any error in failing to discuss Plaintiff’s tremors at step two is
harmless where the ALJ did not deny Plaintiff’s claim at that step and went on to evaluate
Plaintiff’s tremors, or the manifestations of that impairment, at step four. R. 28–29, 31; cf. Salles,
229 F. App’x at 145 n.2; Hicks, 2016 WL 8674251, at *8. At step four, the ALJ specifically
considered that Dr. Bokkala-Pinninti’s April 2018 neurological evaluation revealed, inter alia,

mild postural tremors in Plaintiff’s hands.4 R. 28. The ALJ also considered Dr. Sarmiento’s
examination findings, including, inter alia, that Plaintiff had “had good functionality of his right
and left hands. He would be able to handle fine and small sized objects. He had no significant
limitations to fingering such as picking and pinching objects[,]” which the ALJ found persuasive.
R. 31. The ALJ further explained that “[m]anipulative limitations are not warranted as there is a
lack of any positive objective medical findings or EMG’s since the application date.” R. 33. In

4 Although Plaintiff asserts that his tremors were “much more prominent in the right hand,”
Plaintiff’s Memorandum of Law, ECF No. 15, p. 14 (citing R. 554, 557), the cited pages actually
reflect that Dr. Bokkala-Pinninti actually found the tremors in the “left [were] much more
prominent than the right.” R. 554; 557 (same). Plaintiff is right-hand dominant. R. 501, 611, 668.
28
other words, the ALJ considered Plaintiff’s tremors, as well as any manifestations of that
impairment, when fashioning the RFC.
Although Plaintiff asserts that the propranolol prescribed for his tremors “has been
ineffective[,]”Plaintiff’s Memorandum of Law, ECF No. 15, p. 15 (citing R. 557, 677); Plaintiff’s

Reply Memorandum, ECF No. 27, p. 3 (same), Plaintiff’s citations do not support this assertion.
Plaintiff’s first citation reflects that Dr. Bokkala-Pinninti prescribed propranolol for Plaintiff’s
tremors and migraine headaches. R. 557. However, Plaintiff’s second citation refers to an
unsigned letter from Scott R. Sharetts, M.D., marked “DRAFT” across every page of the letter.
R. 671–79. Even setting aside that this unsigned draft letter apparently does not reflect the final
findings and opinions of this physician, the cited page simply indicates that propranolol was
ineffective in combatting Plaintiff’s head pain; there is nothing on the cited page regarding the
efficacy of this medication in addressing Plaintiff’s tremors. R. 677 (“Cervicogenic headaches as
well as a cervical radiculopathy was diagnosed. The head pain begins at the base of the head and
radiates to the vertex. Topamax and propranolol were ineffective.”).

Similarly, Plaintiff’s insistence that there is “no requirement that a person with tremors
must be diagnosed using objective medical findings[,]” Plaintiff’s Reply Brief, ECF No. 27, p. 2
(emphasis added), does not militate a different result. Even accepting Plaintiff’s assertion in this
regard, the ALJ expressly acknowledged at step four Dr. Bokkala-Pinninti’s April 2018 finding
of hand tremors. R. 28. Moreover, “[a] diagnosis alone . . . does not demonstrate disability.”
Foley v. Comm’r of Soc. Sec., 349 F. App’x 805, 808 (3d Cir. 2009) (citing Petition of Sullivan,
904 F.2d 826, 845 (3d Cir. 1990)); see also Phillips v. Barnhart, 91 F. App’x 775, 780 (3d Cir.
2004) (“[The claimant’s] argument incorrectly focuses on the diagnosis of an impairment rather
than the functional limitations that result from that impairment. A diagnosis of impairment, by

29
itself, does not establish entitlement to benefits under the Act”). Notably, Dr. Bokkala-Pinninti
did not articulate any limitations flowing from Plaintiff’s hand tremors in her May 2018 report, a
fact that the ALJ expressly considered. R. 30 (discussing Dr. Bokkala-Pinninti’s opinion issued
in May 2018, including that she found that Plaintiff “had no limitations with use of his hands or

feet”); see also R. 539 (reflecting, inter alia, Dr. Bokkala-Pinninti’s May 2018 opinion that
Plaintiff can use his hands for repetitive action such as simple grasping, pushing and pulling, and
fine manipulation). As previously discussed, an ALJ need include only “credibly established”
limitations, i.e., limitations that are medically supported or otherwise uncontroverted in the
record. Rutherford, 399 F.3d at 554; see also Grella v. Colvin, No. 3:12-cv-2115, 2014 WL
4437640, at *18 (M.D. Pa. Sept. 9, 2014) (“[T]he ALJ cannot accommodate limitations which do
not exist, or which cannot be found in the medical record.”). For these reasons, the Court is not
persuaded that the ALJ’s consideration of Plaintiff’s tremors requires remand. See id.; see also
Norris v. Kijakazi, No. 21-CV-2524, 2023 WL 3674308, at *15 (E.D. Pa. May 25, 2023)
(“Contrary to Plaintiff’s assertions, his tremor does not present any restrictions not accounted for

in the RFC. . . . Plaintiff complains that the ‘quantification’ of improvement is unknown from the
record, but the absence of any such evidence is not a basis to overturn the ALJ’s decision . . . In
short, Plaintiff fails to point to evidence that he lacks even ‘good’ use of his left hand or that he
is ‘significantly’ limited in his ability to reach or handle with it”).
In further challenging the RFC determination, Plaintiff also argues that the ALJ erred in
failing to find Plaintiff’s post-concussion syndrome severe at step two and that the ALJ did not
discuss how he considered this impairment at step four when fashioning the RFC. Plaintiff’s
Memorandum of Law, ECF No. 15, pp. 14–15; Plaintiff’s Reply Memorandum, ECF No. 27, pp.
4–5. Plaintiff specifically complains that he has “ongoing headaches, dizziness, and memory loss

30
due to his post-concussion syndrome[.]” Plaintiff’s Memorandum of Law, ECF No. 15, p. 15
(citing R. 324, 523). For her part, the Acting Commissioner points out that the ALJ expressly
noted that Plaintiff had a remote history of a car accident that resulted in post-concussive
syndrome. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 25, p. 25 (citing R. 28).

The Acting Commissioner further highlights that the ALJ considered Plaintiff’s articulated
symptoms (headaches, dizziness, and memory loss) throughout the decision and sufficiently
addressed them in the RFC: The ALJ found migraine headaches and a neurocognitive disorder to
be severe impairments, discussed the medical evidence relevant to those impairments, and
explained how he accounted for Plaintiff’s alleged symptoms in the RFC for simple, low stress,
light work with additional postural and environmental limitations. Id. Plaintiff nevertheless
complains in reply that “there is no off-task limitation in the RFC despite the record indicating
that the Plaintiff experiences headaches at least 5 times per week.” Plaintiff’s Reply Brief, ECF
No. 27, pp. 4–5 (citing R. 585). Plaintiff further complains that the ALJ mentions dizziness only
once in the opinion. Id. at 5 (citing R. 29). Plaintiff therefore insists that the ALJ “improperly

accounted for these limitations in the RFC.” Id.
Plaintiff’s arguments are not well taken. Again, any error in failing to specifically discuss
Plaintiff’s post-concussion syndrome at step two is harmless where the ALJ did not deny
Plaintiff’s claim at step two and where the ALJ considered the manifestations of that
impairment—headaches, dizziness, and memory loss, per Plaintiff—throughout the rest of the
sequential evaluation. R. 24–35; cf. Salles, 229 F. App’x at 145 n.2; Hicks, 2016 WL 8674251, at
*8. Notably, at step four, the ALJ expressly acknowledged that Plaintiff “has a remote history of
motor vehicle accident in 2007 resulting in post concussive syndrome after a closed head
injury[.]” R. 28. The ALJ further thoroughly considered Plaintiff’s chronic migraines and

31
headaches at step four. R. 27–31, 33. The ALJ also considered Plaintiff’s symptom of dizziness.
R. 27, 29. The ALJ went on to expressly acknowledge Plaintiff’s “remote history of work related
injuries”5 and resultant migraines when explaining why the RFC for simple, low stress, light
work with additional postural and environmental limitations sufficiently addressed any

limitations flowing from Plaintiff’s impairments. R. 26, 33. Although Plaintiff complains that the
ALJ failed to include an off-task limitation to accommodate headaches that he asserts occur “at
least 5 times per week[,]” Plaintiff’s Reply Brief, ECF No. 27, pp. 4–5 (citing R. 585), the ALJ
properly considered but discounted the intensity, persistence, and limiting effects of Plaintiff’s
subjective statements in light of the medical record. In addition, Plaintiff’s criticism that “the
ALJ only mentions the Plaintiff’s dizziness one time in the whole opinion[,]” id. at 5, does not
persuade this Court that the ALJ committed reversible error: The ALJ expressly considered
Plaintiff’s dizziness twice at step four, R. 27, 29, and further considered that Dr. Sarmiento did
not observe any significant balance limitations during his consultative examinations, R. 31.
Accordingly, based on this record, the Court concludes that the ALJ adequately considered

Plaintiff’s manifestations flowing from his post-concussion syndrome.
In continuing to challenge the RFC, Plaintiff contends that the RFC determination is
inconsistent with the moderate mental limitations that the ALJ found at step three when
conducting the psychiatric review technique (“PRT”). Plaintiff’s Memorandum of Law, ECF No.
15, pp. 15–18 (citing, inter alia, Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004)); Plaintiff’s
Reply Memorandum, ECF No. 27, pp. 5–7. Plaintiff first specifically complains that the RFC
does not account for—nor does the ALJ properly explain why the RFC does not account for—his

5 “The [motor vehicle] accident occurred during the course of [Plaintiff’s] employment as a truck
and safety controller.” R. 323; see also R. 491 (“During the course of employment the patient
was involved in a motor vehicle accident injuring his neck, right shoulder, head/face.”).
32
moderate limitation in his ability to concentrate, persist or maintain pace and fails to include in
the RFC needed time off-task, nor does it include a need to avoid work requiring strict quotas.
Plaintiff’s Memorandum of Law, ECF No. 15, pp. 16–17; Plaintiff’s Reply Memorandum, ECF
No. 27, pp. 5–6 (citing, inter alia, Hess v. Comm’r Soc. Sec., 931 F.3d 198 (3d Cir. 2019)).

Plaintiff’s arguments are not well taken. “[A]s long as the ALJ offers a ‘valid
explanation,’ a ‘simple tasks’ limitation is permitted after a finding that a claimant has
‘moderate’ difficulties in ‘concentration, persistence, or pace.’” Hess, 931 F.3d at 211
(explaining that this conclusion “flows directly from our decision in Ramirez”). In the present
case, the ALJ’s decision offers a “valid explanation” for the finding that a limitation to simple,
routine, and repetitive tasks adequately accommodates a moderate limitation in concentration,
persistence, or pace. Specifically, when fashioning the RFC, the ALJ expressly relied on, inter
alia, Dr. Mintzer’s August 2018 and January 2019 consultative mental status examinations,
which revealed that Plaintiff had normal speech, no hallucinations or delusions, goal directed
thoughts, good abstract thinking, and a fair general fund of knowledge; he could perform simple

calculations and perform serial sevens slowly and had average intelligence; he had good remote
memory. R. 29. The ALJ found persuasive the state agency opinions that Plaintiff, inter alia, had
moderate limitations in concentration, persistence, and pace, and that Plaintiff is able to persist at
tasks that can be learned in one to three months on the job. R. 32. The ALJ also noted that
Plaintiff’s mental impairments have been managed by only primary care follow up and
medications with no outpatient or inpatient psychiatric treatment since the application date and
that there has been no treatment for his neurocognitive disorder. R. 33. The ALJ noted that
Plaintiff remained functional in his daily activities with assistance from his mother and that
“[h]is mental status examinations suggest that limitations for simple low stress work with limited

33
social interactions are appropriate. No additional limitations are warranted based on his lack of
treatment[,]” id. Moreover, the ALJ also limited Plaintiff to, inter alia, “goal oriented rather than
production paced tasks[.]” R. 26. Based on this record, Ramirez does not require remand or
otherwise undermine the ALJ’s RFC determination. See Hess, 931 F.3d at 214 (finding that

ALJ’s explanation was sufficient where the ALJ “highlighted, among other things, the following:
mental status examinations and reports that revealed that Hess could function effectively;
opinion evidence showing that Hess could do simple work; and Hess’s activities of daily living,
which demonstrated that he is capable of engaging in a diverse array of ‘simple tasks’”); Long v.
Kijakazi, No. 20-CV-6336, 2022 WL 1204131, at *14 (E.D. Pa. Apr. 22, 2022) (concluding that
the ALJ provided a valid explanation for finding that the claimant is capable of performing
simple tasks where the ALJ “repeatedly pointed out Plaintiff’s ‘normal’ mental status
examinations[,]” “emphasized Plaintiff’s ADLs, which included such tasks as childcare for three
children (including a one-year-old), house cleaning, woodworking, laundry and shopping[,]” and
the claimant’s “progress notes consistently showed full orientation, alertness, logical thought

processes, fair or normal insight and judgment, and intact reality testing, decision making,
attention, concentration, and memory”); Elizabeth F. v. Comm’r of Soc. Sec. Admin., No. CV 20-
14632, 2022 WL 798021, at *6 (D.N.J. Mar. 16, 2022) (rejecting the plaintiff’s argument that,
where there existed medical opinions that Plaintiff would routinely be off-task, the ALJ did not
adequately translate the moderate mental limitation he imposed on the plaintiff (limitations in
concentration, persistence, or maintaining pace) into the RFC determination where there existed
medical opinion in the record because “the ALJ’s RFC assessment adequately explains why the
ALJ believed Plaintiff can perform simple tasks”) (citing Hess, 931 F.3d at 212).

34
Plaintiff points to Dr. Bokkola-Pinninti’s opinion that, inter alia, Plaintiff would need ten
unscheduled breaks throughout the day, each lasting 20 minutes. Plaintiff’s Memorandum of
Law, ECF No. 15, p. 16 (citing R. 538); Plaintiff’s Reply Memorandum, ECF No. 27, p. 5
(same). However, for the reasons detailed below in the discussion addressing Plaintiff’s

challenges to the ALJ’s consideration of the opinion evidence, the ALJ properly discounted Dr.
Bakkala-Pinninti’s extreme limitations.
In further contending that the ALJ did not adequately accommodate Plaintiff’s moderate
limitations in concentration, persistence, and pace, Plaintiff contends that a “consultative
examiner, Dr. Samuel Sarmiento, whose opinion the ALJ found partially persuasive, opined that
the Plaintiff would be able to sit, walk, and stand for a reasonable amount of time with needed
breaks (R. 612). This leaves subsequent reviewers unclear whether the ALJ considered this
portion of Dr. Sarmiento’s opinion or ignored it altogether.” Plaintiff’s Memorandum of Law,
ECF No. 15, pp. 16–17; Plaintiff’s Reply Memorandum, ECF No. 27, pp. 5 – 6 (noting again that
the ALJ found Dr. Sarmiento “partially persuasive” and arguing that “while the ALJ did limit the

Plaintiff to no more than just unskilled tasks, the ALJ did not limit the Plaintiff regarding time
off task despite being overwhelmingly documented by the evidence. Since a valid explanation as
to why time off task was not provided by the ALJ despite ample evidence in the record
supporting that limitation, this constitutes harmful error warranting remand”). The Court is not
persuaded that Dr. Sarmiento’s opinion warrants additional restrictions in the RFC, nor is the
Court persuaded that the ALJ’s failure to incorporate greater restrictions in the RFC warrants
remand. The ALJ expressly considered Dr. Sarmiento’s opinion and explained that he found that
opinion only partially persuasive because that physician did not offer specific functional
limitations, as follows:

35
Dr. Sarmiento concluded that the claimant would be able to walk and stand for a
reasonable amount of time with needed breaks. He would be able to sit for a
reasonable amount time with needed breaks. No significant balance limitations
were observed during the evaluations. He had good functionality of his right and
left hands. He would be able to handle fine and small sized objects. He had no
significant limitations to fingering such as picking and pinching objects (Exhibits
12F, 19F).

The opinions of Dr. Sarmiento are partially persuasive. Dr. Sarmiento has extensive
program knowledge and he performed two personal examinations of the claimant.
His assessment is generally consistent with his examination, but it is not found to
be more persuasive as his assessment is overly vague and did not quantify any
specific functional limitations for consideration. Dr. Sarmiento did not offer any
specific exertional, postural, or other limitations, but he generally suggested that
the claimant had no significant limitations. His statements are overall consistent
with his benign examinations, but they are overly vague and nonspecific.

R. 31 (emphasis added). The Court finds no error with the ALJ’s consideration in this regard. See
Kerdman v. Comm’r of Soc. Sec., 607 F. App’x 141, 144 (3d Cir. 2015) (“[S]ubstantial evidence
supports the ALJ’s conclusion that Dr. Frank’s opinion was not well-supported, as Dr. Frank
failed to reference any objective medical evidence supporting his statements of disability or
articulate any specific functional limitations suffered by [the claimant].”); cf. Daywalt v.
Kijakazi, No. 1:20CV277, 2021 WL 3679304, at *10 (M.D.N.C. Aug. 19, 2021) (“Without
quantifying ‘a longtime [sic]’ (Tr. 564), Dr. Williams’s opinion lends little guidance to the ALJ
in determining how long Plaintiff could stand.”); Cynthia D. v. Saul, No. 1:19-CV-03075-JTR,
2020 WL 3620091, at *4 (E.D. Wash. Apr. 28, 2020) (“With respect to Dr. Pellicer’s opinion
that Plaintiff could stand or walk for six hours in a workday with frequent breaks, Dr. Pellicer
failed to explain what she meant by ‘frequent.’ It is unclear whether she was indicating more
frequent breaks than would be normally allowed throughout the workday. Because this statement
is vague and imprecise, the Court finds the ALJ was not required to credit or reject it.”); Nixon v.
Comm’r of Soc. Sec., No. CV 18-1631, 2019 WL 4748058, at *1 (W.D. Pa. Sept. 30, 2019)
(“Thus, as Dr. Tran’s opinion did not include specific functional limitations and merely opined
36
as to Plaintiff’s limited employability, the Court finds that the ALJ did not err in giving little
weight to that opinion in his analysis.”); Assenat v. Berryhill, No. 7:15CV00596, 2017 WL
1383941, at *4 (W.D. Va. Mar. 24, 2017) (finding that the opinion that the claimant “needs
frequent rest breaks” is vague).

In contending that the ALJ did not adequately accommodate Plaintiff’s moderate mental
limitations, Plaintiff also complains that the RFC would contemplate occasional changes to
settings, processes, and tools even though the ALJ found a moderate restriction in Plaintiff’s
ability to adapt or manage himself and the ALJ “even notes in the PRT that the Plaintiff cannot
handle stress or changes in routine.” Plaintiff’s Memorandum of Law, ECF No. 15, p. 17.
Plaintiff’s arguments are not well taken. As a preliminary matter, “no incantations are required at
steps four and five simply because a particular finding has been made at steps two and three.
Those portions of the disability analysis serve distinct purposes and may be expressed in
different ways” and, therefore, “the findings at steps two and three will not necessarily translate
to the language used at steps four and five.” Hess, 931 F.3d at 209. To the extent that Plaintiff

relies on his hearing testimony to support his argument, Plaintiff’s Memorandum of Law, ECF
No. 15, p. 17 (citing, inter alia, R. 56–57), the ALJ properly discounted the intensity,
persistence, and limiting effects of Plaintiff’s subjective symptoms for the reasons discussed in
more detail later in this Opinion and Order. Moreover, Plaintiff simply points to this testimony
without explaining what different or additional RFC restrictions it purportedly requires. See id.;
see also Padgett v. Comm’r of Soc. Sec., No. CV 16-9441, 2018 WL 1399307, at *2 (D.N.J. Mar.
20, 2018) (“[B]ecause Plaintiff has articulated no analysis of the evidence, the Court does not
understand what argument Plaintiff has made here. Plaintiff has done no more than throw down a
few pieces of an unknown jigsaw puzzle and left it to the Court to put them together. The Court

37
does not assemble arguments for a party from fragments.”). In any event, the RFC determination,
in addition to limiting Plaintiff to simple routine instructions and simple work, expressly restricts
Plaintiff to a “low stress work environment, defined as only occasional changes to setting,
processes, and tools, and occasional independent decision making[.]” R. 26. Notably, Plaintiff

does not explain why these limitations fail to accommodate his moderate limitations in his ability
to adapt or manage himself. See Plaintiff’s Memorandum of Law, ECF No. 15, p. 17. Based on
this record, the Court finds that the RFC adequately addresses Plaintiff’s moderate limitation in
his ability to adapt or manage himself. See Richardson v. Saul, No. CV 21-1359, 2022 WL
16536225, at *2 (E.D. Pa. Oct. 28, 2022) (finding that the ALJ did not err in failing to account
for the plaintiff’s moderate limitation to adapt or manage herself where the ALJ limited the
plaintiff to “only occasional interaction with the general public, coworkers, and supervisors in a
low stress environment”) (internal quotation marks omitted).
In further challenging the sufficiency of the RFC based on his mental limitations,
Plaintiff notes that the ALJ found moderate limitations in Plaintiff’s ability to interact with

others, but Plaintiff apparently contends that the evidence establishes that he was more limited,
warranting greater limitations than occasional interaction with the public, supervisors, and
coworkers. Plaintiff’s Memorandum of Law, ECF No. 15, pp. 17–18; Plaintiff’s Reply
Memorandum, ECF No. 27, p. 6. Specifically, Plaintiff points to Dr. Mintzer’s diagnosis of
agoraphobia and contends that Dr. Mintzer “opined that the Plaintiff experiences anxiety when
he leaves his house and when he is out in public.” Plaintiff’s Memorandum of Law, ECF No. 15,
p. 17 (citing R. 663). Plaintiff further contends that “[t]he record also reflects that the Plaintiff
gets social anxiety, becomes nervous, sweats really bad, and his heart races when he goes to
public places such as stores because there are a lot of people.” Id. at 17–18 (citing R. 620); see

38
also Plaintiff’s Reply Brief, ECF No. 27, p. 6 (citing R. 6636). Plaintiff also notes that,
notwithstanding the fact that the ALJ found Dr. Mintzer’s opinion overly vague and not
quantifying any specific functional limitations, the ALJ nevertheless found this opinion partially
persuasive, Plaintiff’s Memorandum of Law, ECF No. 15, p. 18; see also Plaintiff’s Reply Brief,

ECF No. 27, p. 6 (same), and complains that the RFC’s limitation to occasional interaction with
the public, supervisors, and coworkers is “[c]learly” “inconsistent with Dr. Mintzer’s opinion,
leaving subsequent reviewers to question whether these key limitations were considered or
ignored altogether.” Plaintiff’s Memorandum of Law, ECF No. 15, p. 18; see also Plaintiff’s
Reply Brief, ECF No. 27, p. 6 (same).
Plaintiff’s arguments are not well taken. The ALJ expressly stated that Dr. Mintzer’s
actual opinion was only “partially persuasive” because he did not identify any specific functional
limitations, as follows:
Dr. Mintzer opined that overall, the claimant’s limitations were moderate to severe
in degree (Exhibits 13F, 20F).

Similarly, the opinions of Dr. Mintzer are partially persuasive. Dr. Mintzer has
extensive program knowledge and he performed personal examinations of the
claimant. His assessment is generally consistent with his examination, but it is not
found to be more persuasive as his assessment is overly vague and did not quantify
any specific functional limitations for consideration. Further, while the evidence
supports moderate limitations in functioning based on Dr. Mintzer’s mental status
examinations, the evidence does not support severe limitations in functioning as the
claimant has had no mental health treatment or hospitalizations.

R. 31–32. The Court finds no error with the ALJ’s consideration of the absence of any specific
functional limitations and lack of mental health treatment in the record. See Kerdman, 607 F.
App’x at 144; cf. Daywalt, 2021 WL 3679304, at *10; Cynthia D., 2020 WL 3620091, at *4;
Nixon, 2019 WL 4748058, at *1; Assenat, 2017 WL 1383941, at *4.

6 Plaintiff cites to the wrong page; the information he recounts appears at R. 662.
39
Although Plaintiff points to Dr. Mintzer’s diagnosis of agoraphobia, this Court has
already explained that a diagnosis, standing alone, does not demonstrate disability. Foley, 349 F.
App’x at 808; Phillips, 91 F. App’x at 780. Plaintiff’s assertion that Dr. Mintzer “opined that
Plaintiff experiences anxiety when he leaves his house and is out in public” and that the record

reflects evidence of social anxiety do not save Plaintiff’s argument. First, Dr. Mintzer did not
expressly opine “that Plaintiff experiences anxiety when he leaves his house and is out in
public”: Instead, Plaintiff’s assertion merely reflects Plaintiff’s subjective complaints during the
examination. R. 620, 662. The mere memorialization of a claimant’s subjective complaints in a
medical record does not transform those complaints into objective findings or a medical opinion.
Hatton v. Comm’r of Soc. Sec. Admin., 131 F. App’x 877, 879 (3d Cir. 2005) (“[A] medical
source does not transform the claimant’s subjective complaints into objective findings simply by
recording them in his narrative report[.]”) (summarizing Craig v. Chater, 76 F.3d 585, 590 n. 2
(4th Cir. 1996)); Morris v. Barnhart, 78 F. App’x 820, 824–25 (3d Cir. 2003) (“[T]he mere
memorialization of a claimant’s subjective statements in a medical report does not elevate those

statements to a medical opinion.”) (citations omitted); Famularo v. Comm’r of Soc. Sec., No. CV
20-1655, 2021 WL 613832, at *7 (D.N.J. Feb. 17, 2021) (“[A] a claimant’s own subjective
report about her symptoms[] does not become a medical opinion by virtue of being recorded in
treatment notes.”) (citations omitted). Second, Plaintiff’s additional contention that the record
reflects evidence of social anxiety again rests on his own subjective complaints to Dr. Mintzer.
R. 620, 662. As discussed in more detail below, the ALJ properly discounted the intensity,
persistence, and limiting effects of Plaintiff’s subjective symptoms. In any event, the ALJ
considered that Dr. Mintzer also noted that, although Plaintiff stated that he did not go out alone
because of social anxiety, Plaintiff admitted that he “gets along very well with other people[,]”

40
occasionally got together with friends, and occasionally saw family members. R. 25, 29; cf.
Hatton, 131 F. App’x at 880 (“When ‘presented with the not uncommon situation of conflicting
medical evidence . . . [t]he trier of fact has the duty to resolve that conflict.’”) (quoting
Richardson v. Perales, 402 U.S. 389, 399 (1971)). Moreover, the ALJ found the findings of the

reviewing state agency psychological consultants persuasive, including a limitation for simple
low contact work. R. 32. Plaintiff therefore has not persuaded this Court that the ALJ erred in
accommodating Plaintiff’s moderate limitation in interacting with others.
In continuing to challenge the RFC determination, Plaintiff contends that the ALJ erred in
his consideration of Dr. Bokkala-Pinninti’s opinions and contends that the ALJ failed to consider
the medical opinions of Lewis A. Lazarus, Ph.D., and Edward A. Maitz, Ph.D., ABPN.
Plaintiff’s Memorandum of Law, ECF No. 15, pp. 18–26; Plaintiff’s Reply Brief, ECF No. 17,
pp. 7–11. For the reasons that follow, Plaintiff’s arguments are not well taken.
For claims filed after March 27, 2017,7 the regulations eliminated the hierarchy of

medical source opinions that gave preference to treating sources. Compare 20 C.F.R. § 416.927
with 20 C.F.R. § 416.920c(a) (providing, inter alia, that the Commissioner will no longer “defer
or give any specific evidentiary weight, including controlling weight, to any medical opinion(s)
or prior administrative medical finding(s), including those from [the claimant’s] medical
sources”). Instead, the Commissioner will consider the following factors when considering all
medical opinions: (1) supportability; (2) consistency; (3) relationship with the claimant,
including the length of the treating examination, the frequency of examinations, and the purpose
of the treatment relationship; (4) the medical source’s specialization; and (5) other factors,
including, but not limited to, “evidence showing a medical source has familiarity with the other

7 As previously noted, Plaintiff’s claim was filed on April 30, 2018.
41
evidence in the claim or an understanding of our disability program’s policies and evidentiary
requirements.” 20 C.F.R. § 416.920c(c).
The regulations emphasize that “the most important factors [that the ALJ and
Commissioner] consider when [] evaluat[ing] the persuasiveness of medical opinions and prior

administrative medical findings are supportability (paragraph (c)(1) of this section) and
consistency (paragraph (c)(2) of this section).” Id. at § 416.920c(a). As to the supportability
factor, the regulations provide that “[t]he more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her medical
opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions
or prior administrative medical finding(s) will be.” Id. at § 416.920c(c)(1). As to the consistency
factor, the regulations provide that “[t]he more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.” Id. at § 416.920c(c)(2).

The applicable regulations further require the ALJ to articulate his “consideration of
medical opinions and prior administrative medical findings” and articulate in the “determination
or decision how persuasive [he] find[s] all of the medical opinions and all of the prior
administrative medical findings in [the claimant’s] case record.” Id. at § 416.920c(b).
“Specifically, the ALJ must explain how he considered the ‘supportability’ and ‘consistency’
factors for a medical source’s opinion. . . . The ALJ may—but is not required to—explain how
he considered the remaining factors.” Michelle K. v. Comm’r of Soc. Sec., No. 1:19-CV-01567,
2021 WL 1044262, at *4 (W.D.N.Y. Mar. 19, 2021) (citing 20 C.F.R. §§ 404.1520c(b)(2),
416.920c(b)(2)).

42
In the present case, the ALJ considered Dr. Bokkala-Pinninti’s opinions, but found them
“not persuasive[,]” reasoning as follows:
Shaila Bokkala-Pinninti, D.O., Ph.D., completed a medical report in May 2018. She
opined that the claimant could sit and stand for 30 minutes at one time and then
must sit or lie down. He could sit, stand and walk for less than 2 hours per day. He
would need 10 unscheduled breaks per day. He could occasionally lift and carry
less than 10 pounds. He could occasionally bend, stoop, squat, crawl, climb, and
reach. He had no limitations with use of his hands or feet. He had moderate
restrictions around unprotected heights, machinery, driving, marked changes in
temperature and humidity, and exposure to dust, fumes, and gases. He would be
absent about 5 days per month. The claimant’s pain would cause significant
restrictions in daily activities and work performance (Exhibit 10F).

Dr. Bokkala-Pinninti also completed a multiple sclerosis medical report in February
2020. She acknowledged that workup was questionable for MS and it was not
definitively confirmed. There was no confirmed diagnosis of MS. The claimant had
a fair prognosis. He had symptoms of fatigue, weakness, unstable walking, and
numbness. The claimant’s pain, fatigue, and other symptoms would frequently
interfere with his attention and concentration. Moderate stress was okay. Physical
exam was normal. She opined that the claimant could walk 3 to 4 city blocks and
sit for 30 minutes at one time. She found that he should avoid all exposure to fumes,
odors, dusts, gases, and hazards, and even moderate exposure to extreme cold or
heat, wetness, humidity and noise. He would be absent more than 4 days per month
(Exhibit 25F).

Overall, Dr. Bokkala-Pinninti’s opinions are not persuasive. Although she has a
longitudinal treating history with the claimant and is familiar with his history, her
opinions are overly restrictive. She suggests that the claimant could not even sustain
sedentary work. Her proposed postural and environmental limitations are consistent
with the overall record and the claimant’s combined impairments, as those
limitations are supportive of the claimant’s chronic pain and migraines. But, she
also suggests excessive absences and significant restrictions due to pain despite
medications. Those restrictions are not consistent with the record, as the claimant
has had no treatment other than primary care treatment in several years. He
manages his pain and migraines conservatively with medications alone. Dr.
Bokkala-Pinninti also acknowledges that the claimant has no confirmed MS
diagnosis, so it is unclear why she is suggesting more than 4 absences per month
and what that limitation is based upon. She also suggested 10 unscheduled breaks
per day, but she did not explain what objective medical findings support that
conclusion. Ultimately, her opinions are not consistent with or supported by the
claimant’s treating history, which shows limited recent treatment and an overall
conservative treating history for his impairments.

43
R. 30–31; see also R. 28 (discussing a neurological evaluation in April 2018, Exhibit 8F, R. 479–
87, which was performed by Dr. Bokkala-Pinninti). As detailed above, the ALJ expressly
acknowledged Dr. Bokkala-Pinninti’s long treating relationship with Plaintiff when finding that
this physician’s opined postural and environmental limitations were consistent with the record,

but explained why this physician’s extreme limitations (which include excessive absences) were
inconsistent with the record, which reflects a conservative treatment history and where the
physician did not point to any objective evidence that supported her opinion in this regard. R.
30–31. The Court finds no error with the ALJ’s consideration of this opinion. See 20 C.F.R. §
416.920c(c)(1)–(3); Serrano v. Kijakazi, No. CV 20-3985, 2021 WL 4477137, at *3–4 (E.D. Pa.
Sept. 30, 2021) (“Here, the ALJ explicitly considered the supportability and consistency factors
relative to Mr. Martelo’s opinion by stating that the opinion was not well supported by and was
inconsistent with the mental health records. R. at 27. The ALJ had no further responsibility to
cite to the record, which contained over 1,000 pages.”); Debevits v. Saul, No. CV 20-600, 2021
WL 2590140, at *4 (W.D. Pa. June 24, 2021) (finding that the ALJ “appropriately assessed Dr.

Kellis’ medical opinion in light of these standards” under the applicable regulations, where the
ALJ concluded that a physician’s opinion was not persuasive because “the limitations [the
physician] espoused were not consistent with or supported by other evidence of record”). This is
true even though Plaintiff points to contrary evidence that he believes supports the opposite
conclusion. Johnson v. Comm’r of Soc. Sec., 497 F. App’x 199, 201 (3d Cir. 2012) (stating that a
court “will uphold the ALJ’s decision even if there is contrary evidence that would justify the
opposite conclusion, as long as the ‘substantial evidence’ standard is satisfied”) (citing
Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986)); see also Chandler v. Comm’r of Soc. Sec.,
667 F.3d 356, 359 (3d Cir. 2011) (“Courts are not permitted to reweigh the evidence or impose

44
their own factual determinations [under the substantial evidence standard].”); Hatton, 131 F.
App’x at 880.
To the extent that Plaintiff suggests that the ALJ’s consideration of Dr. Bokkala-
Pinninti’s opinions is defective because this physician is a specialist in the field for which her

opinion is offered, Plaintiff’s Memorandum of Law, ECF No. 15, p. 22 (citing 20 C.F.R.
416.927(c)(1), (2), (5), which applies to claims filed before March 27, 2017, which therefore is
inapplicable to Plaintiff’s claim); Plaintiff’s Reply Brief, ECF No. 27, p. 8 (citing 20 C.F.R. 20
C.F.R. § 416.920c(c)(1), (2), (4)), that argument is not well taken. For the reasons already
discussed, the ALJ properly considered the supportability and consistency of Dr. Bokkala-
Pinninti’s opinions. R. 28, 30–31; 20 C.F.R. § 404.1520c(1)–(2). Although the ALJ did not
expressly discuss Dr. Bokkala-Pinninti’s specialty in neurology, the ALJ specifically considered
Dr. Bokkala-Pinninti’s “neurological evaluation in April 2018.” R. 28. In any event, any failure
by the ALJ to expressly discuss Dr. Bokkala-Pinninti’s specialty does not require remand where,

as here, a comprehensive review of the record provides substantial support for the ALJ’s
evaluation of this treating provider’s opinion. See 20 C.F.R. § 416.920c(b)(2) (explaining that the
factors of supportability and consistency “are the most important factors” and that an ALJ “may,
but [is] not required to, explain how” he considered other regulatory factors, including
relationship with the claimant, specialization, and other factors); Jarrett v. Kijakazi, No. CV 21-
1607, 2021 WL 6136936, at *5 (E.D. Pa. Dec. 29, 2021) (finding that the ALJ “satisfied” his
regulatory duties when he “explained that the treatment records were only partly consistent with
and supportive of” the medical opinion because an ALJ “must only explicitly discuss the two
most important factors: consistency and supportability”).

45
In further challenging the RFC, Plaintiff goes on to complain that the ALJ failed to
articulate how he considered the opinions of Edward Maitz, Ph.D., a consultative examiner,
licensed psychologist, and diplomate in neuropsychology, and Lewis Lazarus, Ph.D., a
neuropsychologist who completed an initial neuropsychological consultation. Plaintiff’s

Memorandum of Law, ECF No. 15, pp. 23–24; Plaintiff’s Reply Brief, ECF No. 27, pp. 8–10.
Plaintiff specifically argues as follows:
Dr. Maitz found that the Plaintiff’s pain, fatigue, and emotional factors of anxiety
and depression contributed to his cognitive deficits. (R. 322-333). Dr. Maitz
specifically determined that the Plaintiff’s overall immediate memory skills were
in the Low Average range and were significantly less than expected for someone
of his overall cognitive abilities because the Plaintiff had difficulty retaining even
the limited amount of information he initially remembered. (R. 329). Dr. Maitz also
found the Plaintiff’s grip strength to be severely impaired. (R. 330). Dr. Maitz also
found that the Plaintiff has numbness, tingling, wobbliness in his legs, dizziness,
rapid heart rate, unsteady gait, shakiness, and tremulousness. (R. 331).

The Plaintiff also scored a 26 on the Beck Depression Inventory II which reflects a
moderate level of depression. (R. 331). The Plaintiff acknowledged that he often
feels [sad] and he cries more, has become increasingly self-critical, has lost
confidence in himself, feels more discouraged about his future than he previously
did, has little interest in people and things, has become more irritable, restless, and
agitated, experiences very little pleasure from the things that he previously enjoyed,
has a decreased appetite, a marked loss of libido, difficulty sleeping, very little
energy, and is too tired or fatigued to do many of the things that he used to do. (R.
331). Dr. Maitz also found that the Plaintiff has difficulty with concentration and
decision making. (R. 331). The Plaintiff also scored a 15 on the Beck Anxiety
Inventory which is consistent with a mild level of anxiety. (R. 331). The Plaintiff
feels somewhat scared, nervous, and unable to relax, and is fearful of something
terrible happening or dying. (R. 331). Dr. Maitz also determined that the Plaintiff
would become increasingly anxious, depressed, and neuropsychologically
debilitated if his symptoms were not successfully treated. (R. 332).

This is consistent with Dr. Lazarus findings. For instance, Dr. Lazarus opined that
the Plaintiff’s recent and remote memory skills were compromised and his attention
and concentration were considered to be deficient. (R. 314-316). Dr. Lazarus also
found that the Plaintiff was anxious, hyper for no apparent reason, and that his
affect was somewhat dysphoric but also rather flat and emotionless at times. (R.
315). The Plaintiff gets sad when he experiences frequent and persistent headaches
and he has difficulty falling asleep as well as frequently awakening during the night.
46
(R. 315). The Plaintiff excessively worries about his health and is easily startled in
cars because he is fearful of getting into another accident. (R. 315).

Plaintiff’s Memorandum of Law, ECF No. 15, pp. 23–24; see also Plaintiff’s Reply Brief, ECF
No. 25, pp. 9–10. Plaintiff argues that the ALJ’s failure to properly consider these opinions is
reversible error because their “medical findings are consistent with the record including” Dr.
Bokkala-Pinninti’s opinions and “[a]t the very least, their findings support that the Plaintiff
would be off task, which would necessarily impact his ability to maintain regular and continuing
employment.” Plaintiff’s Memorandum of Law, ECF No. 15, p. 24; see also Plaintiff’s Reply
Brief, ECF No. 25, pp. 10–11.
Plaintiff’s arguments are not well taken. As a preliminary matter, these physicians
conducted their examinations years prior to the alleged disability onset date of February 17,
2017, and the application date of April 30, 2018: Dr. Lazarus performed his evaluation in May
2009 and Dr. Maitz conducted his examination in July 2010. R. 314–16, 322–33. While the ALJ
could have considered this evidence, see Louis v. Comm’r Soc. Sec., 808 F. App’x 114, 120 (3d
Cir. 2020) (citing Pirtle v. Astrue, 479 F.3d 931, 934 (8th Cir. 2007); 20 C.F.R. § 416.912), this
evidence was not entitled to controlling or, indeed, to any particular weight. Cf. Louis, 808 F.
App’x at 120 (finding that the ALJ “was entitled to discount” an opinion letter where the opinion
was written before the applicate date and alleged onset date and where it was inconsistent with
the medical record); Dennis-Orshak v. Berryhill, No. 3:18-CV-15987, 2020 WL 4364330, at *4

(D.N.J. July 30, 2020) (finding that the ALJ did not err in giving no weight to report that
predated the alleged onset date) (citation omitted). Moreover, although the ALJ did not expressly
discuss these findings, the ALJ did rely on them when acknowledging that Plaintiff “has a
remote history of motor vehicle accident in 2007 resulting in post concussive syndrome after a
closed head injury[.]” R. 28 (citing, inter alia, Exhibit 1F, R. 314–16 (reflecting Dr. Lazarus’
47
evaluation), and Exhibit 3F, R. 322–33 (reflecting Dr. Maitz’s evaluation)). In any event, any
error in not expressly discussing the details of these evaluations is, at most, harmless. Plaintiff
insists that these findings “support that the Plaintiff would be off task[,]” Plaintiff’s
Memorandum of Law, ECF No. 15, p. 24; see also Plaintiff’s Reply Brief, ECF No. 25, p. 10, but

Plaintiff’s contention in this regard is based on simple rank speculation. Neither Dr. Maitz nor
Dr. Lazarus opined that Plaintiff has such a functional limitation. R. 314–16, 322–33. As
previously discussed, an ALJ need include only “credibly established” limitations, i.e.,
limitations that are medically supported or otherwise uncontroverted in the record. Rutherford,
399 F.3d at 554; see also Grella, 2014 WL 4437640, at *18. For these reasons, the Court is not
persuaded that the ALJ’s failure to expressly consider the evaluations of Dr. Maitz and Dr.
Lazarus requires remand.
In his final challenge to the RFC determination, Plaintiff contends that the ALJ and the
Appeals Council did not satisfy their duty to develop the record when they failed to issue a
subpoena to obtain treatment records. Plaintiff’s Memorandum of Law, ECF No. 15, pp. 25–26

(citing 20 C.F.R. § 416.912(b), SSR 17-4p, HALLEX I-2-6-56); see also Plaintiff’s Reply Brief,
ECF No. 25, p. 11. Plaintiff contends that he asked the ALJ and the Appeals Council to subpoena
treatment records dated from April 13, 2018, “to the present” from Dr. Bokkala-Pinninti, and
records from Susan Lotkowski, D.O. dated from July 20, 2020, the date on which Dr. Lotkowski
began treating Plaintiff, “to the present” Id. (citing to R. 294–95, 312–13. Plaintiff contends for
the first time in reply8 that “the updated records from Dr. Bokkala-Pinninti had a reasonable

8 The Court will consider this argument even though it need not address arguments raised for the
first time in a reply brief. See United States v. Kolodesh, 787 F.3d 224, 230 n.3 (3d Cir. 2015)
(“In support of the arguments raised in his opening brief, Kolodesh raises several new
contentions in his reply brief. Those are waived and we do not address them further.”); United

48
probability of containing new evidence that would potentially change the outcome of the
decision and the updated records from Dr. Lotkowski contained medical records that likely relate
back to that period and are material to the determination.” Plaintiff’s Reply Brief, ECF No. 27, p.
11 (emphasis added).

Plaintiff’s arguments are not well taken. “ALJs have a duty to develop a full and fair
record in social security cases.” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). However,
“[t]he burden lies with the claimant to develop the record regarding his or her disability because
the claimant is in a better position to provide information about his or her own medical
condition.” Money v. Barnhart, 91 F. App’x 210, 215 (3d Cir. 2004) (citations omitted); see also
Crocker v. Comm’r of Soc. Sec., No. CV 15-8231, 2017 WL 1181584, at *4 (D.N.J. Mar. 29,
2017) (“[T]he ALJ need not search for all relevant evidence available ‘because such a
requirement would shift the burden of proof.’”) (quoting Lynn v. Comm’r of Soc. Sec., No. 12-
1200, 2013 WL 3854460, at *15 (W.D. Pa. July 24, 2013)). “The ALJ’s only duty in this respect
is to ensure that the claimant’s complete medical history is developed on the record before

finding that the claimant is not disabled.” Money, 91 F. App’x at 215 (citing 20 C.F.R. §§
404.1512(d), 416.912(d)); see also SSR 17-4p, 2017 WL 4736894, at *5–6 (Oct. 4, 2017)
(providing that the SSA “may request existing evidence directly from a medical source or entity
that maintains the evidence” under certain limited circumstances and noting that “[a]t the
Appeals Council level of review, development of evidence is more limited. The Appeals Council

States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an appellant’s failure
to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.”);
Wright v. Comm’r of Soc. Sec., No. CV 15-6217, 2016 WL 5429649, at *5 (D.N.J. Sept. 27,
2016) (refusing to consider newly-raised argument in the reply brief and citing Aiellos v. Zisa,
No. 09-3076, 2009 WL 3486301, at *1 (D.N.J. Oct. 20, 2009) (“It is hornbook law that
arguments raised for the first time in a reply brief are waived[.]”)).

49
will not obtain or evaluate additional evidence when deciding whether to grant review unless”
“[o]ne of the circumstances listed in 20 CFR 404.970(b) or 416.1470(b)9 applies and the
individual or his or her representative shows that the evidence is related to the period on or
before the date of the hearing level decision” or “the claim is a title XVI claim that is not based

on an application for benefits (e.g., an age-18 redetermination)”) (emphasis added). “[W]here a
claimant is represented by counsel before the ALJ, an ALJ’s ‘passivity in developing the record

9 This regulation provides as follows:

In reviewing decisions other than those based on an application for benefits, the
Appeals Council will consider the evidence in the administrative law judge hearing
record and any additional evidence it believes is material to an issue being
considered. However, in reviewing decisions based on an application for benefits,
the Appeals Council will only consider additional evidence under paragraph (a)(5)
of this section if you show good cause for not informing us about or submitting the
evidence as described in § 416.1435 because:

(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that
prevented you from informing us about or submitting the evidence earlier;
or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond
your control prevented you from informing us about or submitting the
evidence earlier. Examples include, but are not limited to:

(i) You were seriously ill, and your illness prevented you from
contacting us in person, in writing, or through a friend, relative, or
other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other
accidental cause;
(iv) You actively and diligently sought evidence from a source and
the evidence was not received or was received less than 5 business
days prior to the hearing; or
(v) You received a hearing level decision on the record and the
Appeals Council reviewed your decision.

20 C.F.R. § 416.1470(b).

50
will only be sufficient for remand or reversal when it has clearly prejudiced the claimant.’”
Crocker, 2017 WL 1181584, at *4 (quoting Cartagena v. Comm’r of Soc. Sec., No. 10-05712,
2012 WL 1161554, at *4 (D.N.J. Apr. 9, 2012)).
In the present case, setting aside the fact that neither of the copies of Plaintiff’s counsel’s

letters addressed to the ALJ and the Appeals Council to which Plaintiff cites is signed, Plaintiff’s
reliance on these letters does not persuade the Court that this issue gives rise to reversible error.
First, the letter directed to the ALJ is dated April 15, 2020, i.e., nearly two months after the
administrative hearing held on February 27, 2020 (at which the ALJ said he would “hold the
record open for 30 days for additional documents[,]” R. 44), and more than three months before
Plaintiff purportedly began treating with Dr. Lotkowski. R. 294–95. Accordingly, and contrary to
Plaintiff’s implied suggestion in his briefs, this letter could not—and, in fact, did not—ask the
ALJ to subpoena treatment records from Dr. Lotkowski. See id. Instead, Plaintiff’s letter to the
ALJ represented that counsel and the Plaintiff “have been unsuccessful in obtaining” information
from Dr. Bokkala-Pinninti and asked the ALJ to “exercise [his] subpoena power to obtain” “[t]he

anticipated records [that] cover the period April 13, 2018 to present[.]” R. 294.10 However,
nothing in Plaintiff’s counsel’s April 15, 2020, letter directed to the ALJ, or in Plaintiff’s briefs
to this Court, explains why the ALJ’s discretionary authority to issue a subpoena was warranted
based on the present record, the applicable regulations, or SSR 17-4p. To the extent that
Plaintiff’s conclusory assertion in his reply brief suggests that “the updated records from Dr.

10 The Court notes that the administrative record already contains treatment records from Dr.
Bokkala-Pinninti dated, inter alia, April 12, 2018. Exhibit 8F, pp. 1–2, R. 479–80; Exhibit 10F,
pp. 32–33, R. 552–53. As previously discussed, the ALJ expressly discussed these records. R. 24
(“The objective medical findings show no evidence of nerve root compression, spinal
arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication (Exhibit 10F).”), 28
(discussing follow-up for seizures and noting that a video EEG was normal and citing Exhibit
10F; discussing Dr. Bokkala-Pinninti’s neurological evaluation and citing Exhibit 8F).
51
Bokkala-Pinninti had a reasonable probability of containing new evidence that would potentially
change the outcome of the decision[,]” Plaintiff’s Reply Brief, ECF No. 27, p. 11 (emphasis
added), that speculation will not serve to warrant reversal and remand.
Second, Plaintiff’s counsel’s December 16, 2020, letter addressed to the Appeals Council

renews the request to subpoena records from Dr. Bokkala-Pinninti and asks that the Appeals
Council subpoena records from Dr. Lotkowski:
This is amplification to claimants [sic] brief and arguments in support of reversal
or remand submitted on September 8, 2020. At that time claimant made arguments
with respect to Mr. [P.]’s application and arguments for reversal or remand. In
furtherance of that correspondence I am renewing my request originally made to
ALJ Shellhamer on April 15, 2020 where it was requested that the updated records
from Dr. Shaila Bookall-Pinninti [sic] of Inspira Neurology be subpoenaed as we
were not getting cooperation from that provider nor their vendor for medical
records covering the period from April 13, 2018 through the present. (22E) In
speaking with Mr. [P.], he has indicated that he is now seeing a new doctor at that
facility, Dr. Susan Lotkowski, DO. Dr. Lotkowski began treating the claimant for
his prior MS condition in July 20, 2020 and claimant is attaching those initial
records for the Councils [sic] review.

Claimant has also sent an updated request to Dr. Lotkowski for the remaining
updated records, and also asked if these records be subpoenaed by the Council. As
the records from Inspira Medical go back to April 2018 and contain records that
have a reasonable probability of containing new evidence that would change the
outcome of the decision and, as the updated records from Dr. Lotkowski contain
medical records that likely relate back to that period and are material to the
determination, it is respectfully requested that no Appeals Council determination
denying remand or reversal be made prior to the receipt of those medical records.

R. 312. Notably, Plaintiff’s counsel admits that Plaintiff received some “initial records” from Dr.
Lotkowski, which are attached to counsel’s letter. Id.11 It is not clear when counsel sent an
“updated request to Dr. Lotkowski for the remaining updated records,” or if that physician has

11 Notably, these “initial records” from Dr. Lotkowski reflect that, upon examination on July 20,
2020, Plaintiff was, inter alia, awake and alert, oriented to person, time, place, with appropriate
mood and affect, his recent and remote memory were intact, and he had normal attention, normal
concentration, full language, and normal fund of knowledge, and Plaintiff was able to ambulate
independently with a normal gait, not antalgic, and normal heel walk and toe walk. R. 15–16.
52
refused to produce such records, but counsel nevertheless “asked if these records [could] be
subpoenaed by the Council.” Id. In support of the request for the issuance of a records subpoena,
Plaintiff’s counsel again simply speculates that the requested records from Dr. Bokkala-Pinninti
“have a reasonable probability of containing new evidence that would change the outcome of the

decision” and that updated records from Dr. Lotkowski “likely relate back to that period and are
material to the determination[.]” Id. (emphasis added). Accordingly, as with counsel’s April
2020 letter addressed to the ALJ, nothing in this December 2020, letter directed to the Appeals
Council—or Plaintiff’s briefs—explains why, considering that “[a]t the Appeals Council level of
review, development of evidence is more limited[,]” a subpoena was warranted based on the
present record, the applicable regulations, or SSR 17-4p. Plaintiff has therefore failed to persuade
this Court that the ALJ or the Appeals Council committed reversible error in failing to issue a
subpoena for treatment records.
In short, for all these reasons, the Court concludes that the ALJ’s findings regarding
Plaintiff’s RFC are consistent with the record evidence and enjoy substantial support in the

record, as does his consideration of the opinions of Dr. Mintzer, Dr. Sarmiento, Dr. Bokkala-
Pinninti, Dr. Maitz, and Dr. Lazarus.
B. Subjective Statements
Plaintiff also complains that the ALJ failed to properly consider Plaintiff’s subjective
statements. Plaintiff’s Memorandum of Law, ECF No. 15, pp. 26–29; Plaintiff’s Reply Brief,
ECF No. 27, pp. 11–13. Plaintiff’s arguments are not well taken.
“Subjective allegations of pain or other symptoms cannot alone establish a disability.”
Miller v. Comm’r of Soc. Sec., 719 F. App’x 130, 134 (3d Cir. 2017) (citing 20 C.F.R. §
416.929(a)). Instead, objective medical evidence must corroborate a claimant’s subjective

53
complaints. Prokopick v. Comm’r of Soc. Sec., 272 F. App’x 196, 199 (3d Cir. 2008) (citing 20
C.F.R. § 404.1529(a)). Specifically, an ALJ must follow a two-step process in evaluating a
claimant’s subjective complaints. SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). First, the ALJ
“must consider whether there is an underlying medically determinable physical or mental

impairment(s) that could reasonably be expected to produce an individual’s symptoms, such as
pain.” Id. “Second, once an underlying physical or mental impairment(s) that could reasonably
be expected to produce an individual’s symptoms is established, [the ALJ] evaluate[s] the
intensity and persistence of those symptoms to determine the extent to which the symptoms limit
an individual’s ability to perform work-related activities[.]” Id.; see also Hartranft v. Apfel, 181
F.3d 358, 362 (3d Cir. 1999) (“[Evaluation of the intensity and persistence of the pain or
symptom and the extent to which it affects the ability to work] obviously requires the ALJ to
determine the extent to which a claimant is accurately stating the degree of pain or the extent to
which he or she is disabled by it.”) (citing 20 C.F.R. § 404.1529(c)). In conducting this
evaluation, an ALJ must consider the objective medical evidence as well as other evidence

relevant to a claimant’s subjective symptoms. 20 C.F.R. § 416.929(c)(3) (listing the following
factors to consider: daily activities; the location, duration, frequency, and intensity of pain or
other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side
effects of any medication you take or have taken to alleviate pain or other symptoms; treatment,
other than medication, currently received or have received for relief of pain or other symptoms;
any measures currently used or have used to relieve pain or other symptoms; and other factors
concerning your functional limitations and restrictions due to pain or other symptoms). Finally,
an “ALJ has wide discretion to weigh the claimant’s subjective complaints, Van Horn v.
Schweiker, 717 F.2d 871, 873 (3d Cir. 1983), and may discount them where they are unsupported

54
by other relevant objective evidence.” Miller, 719 F. App’x at 134 (citing 20 C.F.R. §
416.929(c)); see also Izzo v. Comm’r of Soc. Sec., 186 F. App’x 280, 286 (3d Cir. 2006) (“[A]
reviewing court typically defers to an ALJ’s credibility determination so long as there is a
sufficient basis for the ALJ’s decision to discredit a witness.”).

In the present case, the ALJ followed this two-step evaluation process. The ALJ
specifically considered Plaintiff’s subjective complaints. R. 28. The ALJ found that Plaintiff’s
medically determinable impairments could reasonably be expected to cause symptoms, but that
Plaintiff’s statements “concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the record
for the reasons explained in this decision.” R. 28. As previously discussed, the ALJ detailed
years of medical evidence and record testimony to support his findings, including evidence that,
notwithstanding Plaintiff’s obesity and remote history of work related injuries with resultant
degenerative disc disease, radiculopathy, migraines, and demyelinating disease, he has
undergone only limited treatment since the application date; and that he apparently manages his

chronic pain and migraines with only primary care follow up and medication management and
has undergone no surgeries, injections, or hospitalizations for his physical or mental
impairments. R. 27–33. The ALJ therefore found that Plaintiff’s “statements about the intensity,
persistence, and limiting effects of his symptoms, they are inconsistent because the medical
evidence since the application date do[ ] not substantiate the claimant’s allegations of disability.”
R. 28. In the view of this Court, this record provides substantial support for the ALJ’s decision to
discount Plaintiff’s subjective statements as inconsistent with the record evidence. Van Horn,
717 F.2d at 873; Miller, 719 F. App’x at 134; Izzo, 186 F. App’x at 286.

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In challenging the ALJ’s consideration of Plaintiff’s subjective statements, Plaintiff relies

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655790. Public record. Not legal advice.