GUILLEN v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ILARIA G.,1

Plaintiff,

Case No. 1:22-cv-1366

v. Magistrate Judge Norah McCann King

CAROLYN COLVIN,

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 Ilaria G. for Disability

Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 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. For the

reasons that follow, the Court affirms the Commissioner’s decision.

I. PROCEDURAL HISTORY

On October 12, 2013, Plaintiff filed her application for benefits, alleging that she has

been disabled since June 3, 2013. R. 84, 103, 195–96. The application was denied initially and

upon reconsideration. R. 106–10, 112–17. Plaintiff sought a de novo hearing before an

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 Carolyn Colvin, the Acting Commissioner of Social Security, is substituted as Defendant in her

official capacity. See Fed. R. Civ. P. 25(d).

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administrative law judge (“ALJ”). R. 118–19. ALJ Timothy Stewart held a hearing on June 8,

2016, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. R.

31–83. In a decision dated July 11, 2016, the ALJ concluded that Plaintiff was not disabled

within the meaning of the Social Security Act from June 3, 2016, Plaintiff’s alleged disability

onset date, through the date of that decision. R. 15–25 (“the 2016 decision”). Plaintiff timely

filed an appeal from that decision to this Court pursuant to 42 U.S.C. § 405(g). R. 617–21. On

January 3, 2019, this Court reversed the 2016 decision and remanded the matter for further

proceedings. R. 694, 700.

On remand, the Appeals Council, noting that Plaintiff had filed a subsequent claim for

Title II disability benefits on August 19, 2017, directed as follows:

The Appeals Council’s action with respect to the current electronic claim renders

the subsequent claim duplicate. Therefore, the Administrative Law Judge will

consolidate the claims files, associate the evidence, and issue a new decision on the

consolidated claims (20 CFR 404.952 and HALLEX 1-1-10-10), On remand, the

Administrative Law Judge should apply the prior rules [applicable to cases filed

before March 27, 2017] to the consolidated case pursuant to HALLEX I-5-3-30.

R. 703. On April 14, 2021, ALJ Dory Sutker held a hearing at which Plaintiff, who was

represented by counsel, testified with the assistance of an interpreter. R. 2251–78.3 On August

12, 2021, the ALJ held a second hearing at which Plaintiff, again represented by counsel, again

testified, as did a vocational expert. R. 2221–50. After Plaintiff objected to that vocational expert

testimony, R. 1277–78, the ALJ held a third hearing on December 16, 2021, at which Plaintiff,

who was again represented by counsel, again testified with the assistance of an interpreter; a

different vocational expert also testified. R. 561–92. In a decision dated January 19, 2022, the

ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act

3 On January 10, 2020, ALJ Trina Moore issued a Notice of Dismissal for failure to appear at a hearing scheduled

for December 16, 2019, R. 708–09, but the ALJ subsequently vacated that dismissal order for good cause shown. R.

710–11.

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through the date of that decision. R. 517–37 (the “2022 decision”). Plaintiff filed this appeal

pursuant to 42 U.S.C. § 405(g). ECF No. 1. On April 29, 2022, 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. 2.4 On May 3, 2022, the case was reassigned to

the undersigned. ECF No. 5. 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). 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

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, 587 U.S. 97, 102–03 (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,

4The 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).

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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

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

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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

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

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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. §

404.1520(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)).

At step one, the ALJ determines whether the plaintiff is currently engaged in substantial

gainful activity. 20 C.F.R. § 404.1520(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. § 404.1520(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

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Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §

404.1520(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 § 404.1509. 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. § 404.1520(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. § 404.1520(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

impairment or combination of impairments has lasted or is expected to last for a continuous

period of at least twelve months.

III. THE 2022 DECISION AND APPELLATE ISSUES

Plaintiff was 49 years old on December 31, 2017, i.e., the date on which she was last

insured for disability benefits. R. 520, 535. At step one, the ALJ found that Plaintiff had not

engaged in substantial gainful activity between June 3, 2013, her alleged disability onset date,

and her date last insured. R. 520.

At step two, the ALJ found that Plaintiff’s degenerative disc disease of the cervical and

lumbar spines, fibromyalgia, and depressive disorder were severe impairments. Id. The ALJ also

found that Plaintiff’s labyrinthine dysfunction was not severe. Id.

At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of

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impairments that met or medically equaled the severity of any Listing. R. 520–23.

At step four, the ALJ found that Plaintiff had the RFC to perform light work subject to

various additional limitations. R. 523–34. The ALJ also found that this RFC did not permit the

performance of Plaintiff’s past relevant work as a warehouse worker, packer, and industrial truck

operator. R. 534.

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 an assembler, a laborer, and a price marker—existed in

the national economy and could be performed by Plaintiff despite her lessened capacity. R. 535–

36. The ALJ therefore concluded that Plaintiff was not disabled within the meaning of the Social

Security Act from October 12, 2013, her alleged disability onset date, through December 31,

2017, the date on which she was last insured. R. 536–37.

Plaintiff disagrees with the ALJ’s findings at step four and asks that the decision of the

Commissioner be reversed and remanded with directions for the granting of benefits or,

alternatively, for further proceedings. Plaintiff’s Brief, ECF No. 23; Plaintiff’s Reply Brief, ECF

No. 29. The Acting Commissioner takes the position that the decision should be affirmed in its

entirety because the 2022 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. 26.

IV. SUMMARY OF RELEVANT MEDICAL EVIDENCE

A. Vedat Obuz, M.D.

On March 14, 2013, Vedat Obuz, M.D., Plaintiff’s treating physician, wrote a letter

addressed “To Whom It May Concern,” advising that Plaintiff “has chronic back pain, neck pain

and Rheumatoid Arthritis. She can not lift over 20 lbs. Please help her.” R. 318 (“March 2013

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opinion”).

On January 2, 2014, Dr. Obuz completed a three-page, check-the-box, and fill-in-the-blank

form entitled, “General Medical Report.” R. 312–14 (“January 2014 opinion”). Dr. Obuz

indicated that he had examined Plaintiff on a monthly basis beginning on March 8, 2012, and

most recently on March 14, 2013. R. 312. He stated that Plaintiff had a history of severe

fibromyalgia and rheumatoid arthritis and a diagnosis of fibromyalgia. Id. Dr. Obuz opined that

Plaintiff could lift and carry up to 10 to 15 pounds, could stand and/or walk less than 2 hours a

day, and could sit less than 6 hours a day. R. 313. Asked whether Plaintiff had limitations in her

ability to push and/or pull (including hand and foot controls) or other limitations (such as

handling objects, hearing, speaking, and traveling), Dr. Obuz checked the box marked “Limited

(please specify below[.]” Id. However, Dr. Obuz specified neither what these limitations were

nor the extent of such limitations. Id.

On December 5, 2017, Dr. Obuz completed a two-page, check-the-box, and fill-in-the-

blank form entitled “Medical Source Statement of Ability to Do Work-Related Activities

(Physical)[.]” R. 350–51 (“December 2017 opinion”), 1549–50 (duplicate).5 According to Dr.

Obuz, Plaintiff could sit for a total of 0 to 2 hours in an 8-hour workday and could stand/walk for

5 The Court Transcript Index includes two separate exhibits identifying this opinion by Dr. Obuz

as two separate opinions with different dates, Exhibit 6F, R. 350–51, reflecting a date in the

Index of “12/05/13,” and Exhibit 39F, R. 1549–50, reflecting a date in the Index of

“12/05/2017.” Plaintiff similarly appears to take the position that these exhibits contain two

different opinions dated December 2013 and December 2017. Plaintiff’s Brief, ECF No. 23, pp.

6, 16, 23–24. However, these exhibits are, in fact, identical. Compare R. 350–51 with R. 1549–

50. Although the handwritten date on both copies of the opinion is difficult to decipher, the ALJ

interpreted the date as December 2017. R. 533. The Acting Commissioner agrees that Exhibits

6F and 39F are identical but contends that the ALJ erred in finding that the opinion was dated

2017; she insists that the date of this opinion is really 2013. Defendant’s Brief Pursuant to Local

Civil Rule 9.1, ECF No. 26, pp. 4 n.3, 23 n.9. The Court cannot conclude that the ALJ erred in

finding that the opinion was dated 2017 and not 2013. See R. 350–51, 1549–50.

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a total of 1 hour in an 8-hour workday. R. 350. Plaintiff must alternate between sitting and

standing every 20 minutes in order to relieve her pain or discomfort. According to Dr. Obuz,

Plaintiff could occasionally (meaning up to one-third—6% to 33%—of an 8-hour workday) lift

and carry less than 10 pounds and could rarely (meaning approximately 1% to 5% of an 8-hour

workday) lift and carry 10 pounds; she could occasionally use her upper and lower extremities

for pushing and/or pulling; and could rarely climb stairs/ramps/ladders/ropes/scaffolds,

bend/stoop, balance, kneel, or crouch. Id. Plaintiff could occasionally reach in all directions

(including overhead), but could rarely handle, finger, or feel. R. 351. Asked if Plaintiff had

visual/communicative limitations, Dr. Obuz checked the box marked “N/A.” Id. Dr. Obuz denied

that Plaintiff had any environmental limitations. Id. Dr. Obuz opined that Plaintiff needed to take

unscheduled breaks every 20 minutes for an unspecified amount of time. Id. He further opined

that Plaintiff would likely be absent from work 3 or more days per month due to her impairments

and/or treatment. Id.

B. State Agency Medical Consultants

Harpreet Khurana, M.D., conducted an initial review of Plaintiff’s medical record on

behalf of the state agency on December 24, 2013. R. 85–93 (Exhibit 2A). Dr. Khurana

specifically considered the medical evidence as it appeared in the record at that time, which

included, among other things, function reports, treatment records, imaging reports of the cervical

and lumbar spines, and Plaintiff’s subjective reports. R. 85–93. Dr. Khurana found that

Plaintiff’s degenerative disc disease of the back and fibromyalgia were severe. R. 88. Dr.

Khurana opined, inter alia, that Plaintiff was capable of light exertional work. R. 92. Dr.

Khurana further opined that Plaintiff could frequently climb ramps/stairs, balance, stoop, and

kneel and could occasionally crouch and crawl, but could never climb ladders/ropes/scaffolds

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and must avoid even moderate exposure to hazards. R. 90–91. Asked to further explain these

postural and environmental limitations, Dr. Khurana referred to his narrative under the heading,

“RFC — Additional Explanation,” as follows:

Claimant is a 45 year old woman alleging disability.

Allegations Back problem, fibromyalgia, arthritis

AOD=6/3/13

Review of ME in file reveals:

MRI lumbar spine 1/13 disc herniation with annular tear L5-S1, disc bulge L4-5,

straightening of normal lordosis.

MD note 5/13 c/o joint pain, back pain.

Exam Normal gait Reduced C and L ROM, tenderness C/T/L spine. Reduced ROM

shoulders, hips.

Crepitus in knees.

MRI C spine 8/13 C5-6 disc herniation narrowing left foramen, straightening of

normal lordosis.

MD note 10/13 c/o joint and muscle pain, diffuse body pain.

Exam Motor /sensory intact. Full ROM spine, shoulders, UE and LE joints. Tender

points 18/18 noted.

Diagnoses include fibromyalgia. Started on Neurontin.

Based on ME in file, PRFC is proposed.

AOD=MOD.

R. 91.

Mary McLarnon, M.D., reviewed Plaintiff’s medical record upon reconsideration for the

state agency on January 28, 2014. R. 94–102 (Exhibit 3A). Like Dr. Khurana, Dr. McLarnon

found that Plaintiff’s degenerative disc disease of the back and fibromyalgia were severe. R. 97–

98. Dr. McLarnon also agreed with Dr. Khurana that Plaintiff was able to perform light

exertional work and could frequently climb ramps/stairs, balance, stoop, and kneel and could

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occasionally crouch and crawl, but could never climb ladders/ropes/scaffolds and must avoid

even moderate exposure to hazards. R. 99–101. In explaining these postural and environmental

limitations, Dr. McLarnon referred to her narrative statement under the heading, “RFC —

Additional Explanation.” R. 99–100. Dr. McLarnon repeated Dr. Khurana’s narrative and further

noted that there had been no change since the initial review; she specifically noted Dr. Obuz’s

January 2014 opinion:

APPEAL no change

Additional MER

01/14 Dr Obuz recommends severe exertional limitations; last OV 06/13 - taking

Ultracet, ketamine with gabapentin topical solution; Valium. PE normal x diffuse

tenderness. ESR and CRP normal; positive ANA. Severe FBM was diagnosed.

File reviewed.

R. 100.

Following the earlier remand by this Court, Mohamed Abbassi, M.D., conducted an

initial review of Plaintiff’s medical record on behalf of the state agency on November 22, 2017.

R. 622–35 (Exhibit 8A). Dr. Abbassi opined, inter alia, that Plaintiff could perform light

exertional work and could occasionally perform all postural maneuvers. R. 630, 634. In

explaining these limitations, Dr. Abbassi stated that Plaintiff “is reasonably restricted by pain,

the RFC is based on her general multifocal physical c[]omplaints r[a]ther than p[re]cise

diagnosis.” R. 630.

Arthur Pirone, M.D.,6 reviewed Plaintiff’s medical record upon reconsideration for the

state agency on February 27, 2018. R. 637–48 (Exhibit 10A). Among other things, Dr. Pirone

agreed with Dr. Abbassi that Plaintiff could perform light exertional work and could occasionally

perform all postural maneuvers. R. 645–47. Dr. Pirone reaffirmed the physical RFC opined by

6 This consultant’s credentials appear later in the record. R. 649.

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Dr. Abbassi, stating that “[a]ll MER is reviewed. Limitations per RFC 1 are deemed to be

appropriate and are affirmed as written.” R. 643.

C. State Agency Psychological Consultants

Consultant Helen Feldman7 conducted an initial review of Plaintiff’s medical record on

behalf of the state agency on December 8, 2017. R. 622–35 (Exhibit 8A). Consultant Feldman

found that, among other things, Plaintiff’s depressive disorder was severe and that Plaintiff had

moderate limitations in all paragraph B criteria except for a mild limitation in interacting with

others. R. 627–28. Plaintiff was moderately limited in her ability to understand, remember and

carry out detailed instructions; maintain attention and concentration for extended periods;

perform activities within a schedule, maintain regular attendance, and be punctual within

customary tolerances; sustain an ordinary routine without special supervision; work in

coordination with or in proximity to others without being distracted by them; complete a normal

workday or week without interruptions from psychologically based symptoms and to perform at

a consistent pace without unreasonable rest periods; and respond appropriately to routine

changes in the work setting. R. 631–32. Under the heading “MRFC—Additional Explanation,”

Consultant Feldman further explained her findings as follows:

Cl. has no history of OP psych tx or hospitalizations. Psych CE was reviewed as no

other psych MER available. Cl. attended psych CE on 11 / 17 / 17 and was dx with

adjustment DO with mixed anxiety and depressed mood. Cl. reports depressed

mood and anxiety due to her physical status and reports she is prescribed Cymbalta

and Gabapentin. It does not state who prescribes her psych meds. Cl. reports

frequent physical pain. Cl. does not report SI or psychosis.

Psych CE MSE indicates cl. is Ox3, however her IQ is estimated to be in the low

avg. range. Cl.’s long-term memory was estimated at below avg. while short-term

7 The ALJ refers to this consultant as “Helen Feldman, Ph.D.” R. 532. However, other than a

medical specialty code of 38, R. 628 (reflecting the code “38” after her listed name), 633 (same);

POMS DI 24501.004(B) (providing that “38” reflects a specialty of psychology), the credentials

of this state agency consultant are not immediately apparent in the record.

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memory was considered fair. Cl. could not sustain concentration to complete serial

3s or 7s.

ADLs indicate C1. can care for personal and hygiene needs, can do laundry, prepare

some meals, and shopping with her husband. Cl. can pay bills and also drives. Cl.

endorses difficulty concentrating but states she can follow instructions well. Cl.

reports she does not socialize as much as she had in the past and becomes anxious

in response to changes or stressors.

Cl. can follow simple instructions, can sustain CPP, relate and adapt in simple

work-like settings.

R. 633 (emphasis added).

Consultant Howard Mangel8 reviewed Plaintiff’s medical record upon reconsideration for

the state agency on January 24, 2018. R. 637–48 (Exhibit 10A). Upon reconsideration,

Consultant Mangel explained as follows:

Clmt is a 49 year old woman whose claim for SSD had been denied in 12/8/17.

For Recon, clmt filed statement re additional info re: Physical allegations but none

re: mental allegations. No new Mental tx nor allegations.

Clmt is rx’ed Cymbalta 30 mg/day and Clonazepam 5 mg HS, as well as

Gabapentin for pain. She is not in any psychotherapy or other mental health tx now

or in the recent past. She has no hx of inpatient psychiatric admission.

After reviewing MER, including Psyc CE and PRT /MRFC, there are no new

mental problems and no evidence of increased severity.

Previous Psych rating is affirmed.

R. 643.

8 The ALJ refers to this consultant as “Howard Mangel, M.D.[,]” R. 532, but the credentials of

this state agency consultant are not immediately apparent in the record.

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V. DISCUSSION

A. Opinion Evidence Regarding Physical Impairments

Plaintiff challenges the ALJ’s consideration of multiple medical opinions addressing her

physical impairments, including, inter alia, Dr. Obuz’s opinions dated March 2013, January

2014, and December 2017, as well as the opinions of the reviewing state agency medical

consultants. Plaintiff’s Brief, ECF No. 23, pp. 21–35; Plaintiff’s Reply Brief, ECF No. 29, pp. 1–

9. For the reasons that follow, Plaintiff’s arguments are not well taken.

An ALJ must evaluate all record evidence in making a disability determination. Plummer,

186 F.3d at 433; Cotter, 642 F.2d at 704. The ALJ’s decision must include “a clear and

satisfactory explication of the basis on which it rests” sufficient to enable a reviewing court “to

perform its statutory function of judicial review.” Cotter, 642 F.2d at 704–05. Specifically, the

ALJ must discuss the evidence that supports the decision, the evidence that the ALJ rejected, and

explain why the ALJ accepted some evidence but rejected other evidence. Id. at 705–06; Diaz v.

Comm’r of Soc. Sec., 577 F.3d 500, 505–06 (3d Cir. 2009); Fargnoli v. Massanari, 247 F.3d 34,

42 (3d Cir. 2001) (“Although we do not expect the ALJ to make reference to every relevant

treatment note in a case . . . we do expect the ALJ, as the factfinder, to consider and evaluate the

medical evidence in the record consistent with his responsibilities under the regulations and case

law.”). Without this explanation, “the reviewing court cannot tell if significant probative

evidence was not credited or simply ignored.” Cotter, 642 F.2d at 705; see also Burnett, 220

F.3d at 121 (citing Cotter, 642 F.2d at 705).

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For claims filed before March 27, 2017,9 “‘[a] cardinal principle guiding disability

eligibility determinations is that the ALJ accord treating physicians’ reports great weight,

especially when their opinions reflect expert judgment based on a continuing observation of the

patient’s condition over a prolonged period of time.’” Nazario v. Comm’r Soc. Sec., 794 F.

App’x 204, 209 (3d Cir. 2019) (quoting Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)); see

also Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 355 (3d Cir. 2008) (stating that an ALJ

should give treating physicians’ opinions “great weight”) (citations omitted); Fargnoli, 247 F.3d

at 43 (3d Cir. 2001) (stating that a treating physician’s opinions “are entitled to substantial and at

times even controlling weight”) (citations omitted). However, “[a] treating source’s opinion is

not entitled to controlling weight if it is ‘inconsistent with the other substantial evidence in [the]

case record.’” Hubert v. Comm’r Soc. Sec., 746 F. App’x 151, 153 (3d Cir. 2018) (quoting 20

C.F.R. § 404.1527(c)(2)); see also Brunson v. Comm’r of Soc. Sec., 704 F. App’x 56, 59–60 (3d

Cir. 2017) (“[A]n ALJ may reject the opinion of a treating physician when it is unsupported and

inconsistent with the other evidence in the record.”). “In choosing to reject the treating

physician’s assessment, an ALJ may not make speculative inferences from medical reports and

may reject a treating physician’s opinion outright only on the basis of contradictory medical

evidence and not due to his or her own credibility judgments, speculation or lay opinion.”

Morales, 225 F.3d at 317 (internal quotation marks and citations omitted). The ALJ must

9 As previously noted, Plaintiff’s initial claim was filed on October 12, 2013, and, following

remand from this Court, the Appeals Council consolidated this claim with Plaintiff’s later-filed

application and stated that the prior rules would apply to the consolidated claims. R. 703. For

claims filed after March 27, 2017, the Commissioner’s regulations eliminated the hierarchy of

medical source opinions that gave preference to treating sources. Compare 20 C.F.R. § 404.1527

with 20 C.F.R. § 404.1520c(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”).

16

consider the following factors when deciding what weight to accord the opinion of a treating

physician: (1) the length of the treatment relationship and frequency of examination; (2) the

nature and extent of the treatment relationship; (3) the supportability of the opinion; (4) the

consistency of the opinion with the record as a whole; (5) the treating source’s specialization;

and (6) any other relevant factors. 20 C.F.R. § 404.1527(c)(1)–(6). Accordingly, “the ALJ still

may choose whom to credit but ‘cannot reject evidence for no reason or the wrong reason.’”

Sutherland v. Comm’r Soc. Sec., 785 F. App’x 921, 928 (3d Cir. 2019) (quoting Morales, 225

F.3d at 317); see also Nazario, 794 F. App’x at 209–10 (“We have also held that although the

government ‘may properly accept some parts of the medical evidence and reject other parts,’ the

government must ‘provide some explanation for a rejection of probative evidence which would

suggest a contrary disposition.’”) (quoting Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994));

Morales, 225 F.3d at 317 (“Where . . . the opinion of a treating physician conflicts with that of a

non-treating, non-examining physician, the ALJ may choose whom to credit[.]”); Cotter, 642

F.2d at 706–07 (“Since it is apparent that the ALJ cannot reject evidence for no reason or for the

wrong reason, . . . an explanation from the ALJ of the reason why probative evidence has been

rejected is required so that a reviewing court can determine whether the reasons for rejection

were improper.”) (internal citation omitted).

At step four of the sequential evaluation process, the ALJ found that Plaintiff had the

RFC to perform a limited range of light work, as follows:

After careful consideration of the entire record, the undersigned finds that, through

the date last insured, the claimant had the residual functional capacity to perform

light work as defined in 20 CFR 404.1567(b) except she could not climb ladders,

ropes, or scaffolds; she could perform the balance necessary to stand/walk on a

frequent basis, but she could perform the balance necessary to negotiate narrow,

slippery, or erratically moving surfaces on an occasional basis; she could

occasionally stoop, kneel, crouch, and crawl; and she could have no exposure to

unprotected heights or dangerous moving machinery. She could perform

17

uncomplicated tasks (defined as straightforward tasks, such as those typically

learned in less than 30 days); and she could maintain concentration, persistence,

and pace for 2-hour blocks of time throughout the workday consistent with

regularly scheduled breaks and lunch.

R. 523. In reaching this determination, the ALJ, inter alia, assigned “little weight” to Dr. Obuz’s

opinions, reasoning as follows:

The undersigned gives little weight to the opinions of Vedat Obuz, M.D. (Exhibit

2F/1-3; 2F/7; 6F; 9F). In January 2014, Dr. Obuz opined that the claimant could lift

10-15 pounds occasionally, she could stand/walk less than 2 hours per day, she

could sit less than 6 hours per day, and she was limited to an unidentified degree in

pushing/pull and “other.” In support of his opinion, which is hand-written, Dr. Obuz

cited to a diagnosis of fibromyalgia and illegible physical exam findings. In March

2014 [sic], Dr. Obuz opined that the claimant could not lift over 20 pounds due to

chronic back pain, neck pain, and rheumatoid arthritis. The undersigned notes that

these opinions are inconsistent with one another despite being rendered only

months apart. Additionally, the claimant has not been diagnosed with rheumatoid

arthritis. Finally, in December 2017, Dr. Obuz opined that the claimant could sit

for 0-2 hours and stand/walk for 1 hour total in an 8-hour workday; she needed to

alternate positions every 20 minutes; she could occasionally lift less than 10 pounds

and rarely lift 10 pounds; she could occasionally push/pull with the bilateral upper

extremities; she could rarely perform any postural maneuver; she could

occasionally reach and rarely handle, finger, and feel; she would require

unscheduled breaks every 20 minutes; and she would be absent from work 3 or

more days per month. These opinions are not entitled to great weight because they

are overstated and they are inconsistent with the claimant’s largely stable

presentation on physical exams. They are also not entitled to a significant amount

of weight because Dr. Obuz did not provide any objective support or explanation

for his opinions other than to state the claimant’s diagnoses and/or to state that the

claimant had minimal response to medications. These opinions are also inconsistent

with the claimant’s reported daily activities (see, e.g., Exhibit 4E, 22E, 26E, 38F).

Finally, these opinions are not supported by Dr. Obuz’s own treatment notes, which

are handwritten and somewhat illegible, but nonetheless generally do not document

regular or ongoing objective deficits on exams (see, e.g., Exhibit 14F/14-20, 49-53,

56-59, 70, 72, 79; 23F; 55F).

R. 533–34.

Plaintiff challenges the ALJ’s consideration of these opinions, arguing first that the ALJ’s

“primary basis” for discounting both the March 2013 and January 2014 opinions was the ALJ’s

mistaken belief that Dr. Obuz’s March 2013 opinion was instead dated March 2014. Plaintiff’s

18

Brief, ECF No. 23, pp. 24–26; Plaintiff’s Reply Brief, ECF No. 29, pp. 3–7. More specifically,

Plaintiff contends that, although the ALJ believed that these two opinions were inconsistent

despite being rendered only months apart, the “less restrictive” March 2013 opinion was actually

rendered nearly a year before the January 2014 source statement: “Thus, rather than supplying an

apparently inconsistent set of opinions in rapid succession that suggested improved functioning

despite indications of worsening, Dr. Obuz actually gave opinions separated by nearly a year that

were entirely consistent with the documentation of a worsening condition.” Plaintiff’s Brief, ECF

No. 23, p. 24; see also Plaintiff’s Reply Brief, ECF No. 29, pp. 3–5. Plaintiff therefore contends

that the ALJ relied on a “key error” when finding a purported inconsistency and discounting

these opinions. Plaintiff’s Brief, ECF No. 23, pp. 24–25.

The Court is not persuaded that this issue requires remand. It is true that the ALJ

mistakenly stated that Dr. Obuz issued one of his opinions in March 2014 instead of March 2013.

However, the underlying premise of the ALJ’s consideration—that the two opinions were

inconsistent despite having a temporal connection—remains valid. Specifically, the March 2013

opinion is dated March 14, 2013, R. 318, which is the same date that Dr. Obuz identified as the

date on which he had most recently examined Plaintiff when rendering the January 2014 opinion,

R. 312. Dr. Obuz therefore used the same physical examination—performed on March 14,

2013—as the basis for rendering two different opinions about Plaintiff’s functional limitations,

particularly her ability to lift and carry. Compare R. 312–13 with R. 318. Based on this record,

the ALJ’s mistaken reference to the March 2013 opinion as March 2014 is, at most, harmless.

See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (finding that “a remand is not

required here because it would not affect the outcome of the case”).

19

Plaintiff next suggests that the ALJ erred, when considering Dr.Obuz’s March 2013 and

January 2014 opinions, in stating that Plaintiff had not been diagnosed with rheumatoid arthritis.

Plaintiff’s Brief, ECF No. 23, pp. 25–26; Plaintiff’s Reply Brief, ECF No. 29, pp. 5–6. Plaintiff

contends that it “appears” that she had been treated for, inter alia, “suspected rheumatoid

arthritis” from March 2012 through June 2015, and points to an order for an ANA test which,

Plaintiff contends, doctors “generally” order for a suspected autoimmune disease like rheumatoid

arthritis; Plaintiff concedes, however, that such testing is “not conclusive[.]” Plaintiff’s Brief,

ECF No. 23, p. 25. Plaintiff also contends that the March 2013 opinion “mentioned” rheumatoid

arthritis and that her laboratory findings reflected an “elevated sedimentation rate.” Id. Plaintiff

goes on to argue that the ALJ erred in characterizing as “illegible” the “physical exam findings”

in Dr. Obuz’s January 2014 opinion; in Plaintiff’s view, those findings were in fact legible.

Plaintiff’s Brief, ECF No. 23, pp. 25–26; Plaintiff’s Reply Brief, ECF No. 29, p. 6.

Plaintiff has not shown that she is entitled to remand based on these arguments. As a

preliminary matter, and as is apparent in Plaintiff’s filings, the record does not in fact contain an

actual diagnosis of rheumatoid arthritis. See generally Plaintiff’s Brief, ECF No. 23; Plaintiff’s

Reply Brief, ECF No. 29. Although Plaintiff insists that Dr. Obuz’s physical findings in the

January 2014 opinion are legible, the Court disagrees and cannot find that the ALJ erred in

characterizing that portion of the January 2014 opinion as illegible. See R. 312. In any event,

however, Plaintiff concedes that the “primary basis” for discounting both the March 2013 and

January 2014 opinions is that those opinions were inconsistent. Plaintiff’s Brief, ECF No. 23, p.

25; Plaintiff’s Reply Brief, ECF No. 29, p. 6. For the reasons explained above, substantial

evidence supports the ALJ’s finding in this regard.

20

Plaintiff next argues that substantial evidence does not support the ALJ’s consideration of

Dr. Obuz’s December 2017 opinion. She argues that the ALJ erred in finding that this opinion

was “overstated[,]” that the ALJ improperly found—and focused on—“largely stable” findings

on physical examinations, that the ALJ found that Dr. Obuz did not provide any objective

support or explanation for his 2017 opinion, that this opinion was inconsistent with Plaintiff’s

daily activities, and that Dr. Obuz’s treatment notes did not support the December 2017 opinion.

Plaintiff’s Brief, ECF No. 23, pp. 26–31; Plaintiff’s Reply Brief, ECF No. 29, pp. 6–9. For the

reasons that follow, Plaintiff’s arguments are not well taken.

The ALJ noted the different functional limitations contained in the December 2017

opinion—including, inter alia, that Plaintiff could rarely perform any postural maneuver; could

occasionally reach but could rarely handle, finger and feel; would require unscheduled breaks

every 20 minutes; and would be absent from work 3 or more days per month—but found that

those limitations were “not entitled to great weight because they are overstated and they are

inconsistent with the claimant’s largely stable presentation on physical exams.” R. 533. The

ALJ’s conclusion in this regard is supported by Plaintiff’s physical examination findings, which

included, inter alia, intact strength and sensation and full range of motion of the neck, shoulders,

elbows, hands, wrists, hips, knees, ankles, feet, and thoracic and lumbar spines without noted

swelling or tenderness in October 2013; without tenderness, synovitis, warmth, swelling, or

decreased range of motion in the bilateral shoulders, elbows, wrists, hands, hips, knees, feet, or

ankles in March 2015; intact range of motion and strength in the bilateral upper and lower

extremities in March 2016; normal coordination, normal strength, normal sensation, and normal

reflexes in May 2017; the finding that, in November 2017, Plaintiff could stand independently

without balance deficits despite some tenderness, could balance on her heels and toes, could

21

squat and rise without assistance, walked normally without an assistive device, and had normal

or intact range of motion, sensation, and strength in her shoulders, elbows, forearms, wrists,

fingers, hips, knees, ankles, and feet; and the fact that, in December 2017, Plaintiff had full range

of motion without synovitis, swelling, warmth, or tenderness in the elbows, hands, wrists, hips,

knees, feet, and ankles despite some tenderness. R. 526–30. Moreover, and although the ALJ did

not detail each finding from the physical examinations spanning from December 2012 through

November 2021, the ALJ noted that Plaintiff’s examination findings were generally stable. See

id. Based on this record, the Court is not persuaded that the ALJ erred in finding that Dr. Obuz

overstated Plaintiff’s functional limitations in the December 2017 opinion. Cf. Serrano v.

Kijakazi, No. CV 20-3985, 2021 WL 4477137, at *3–4 (E.D. Pa. Sept. 30, 2021) (“In this case,

the ALJ discussed and analyzed the evidence extensively before determining the persuasiveness

of the medical opinions. . . . The ALJ was not required to repeat this information for the sake of

elaborating on her findings of persuasiveness.”).

Plaintiff next argues that the ALJ erred in relying on Plaintiff’s “stable” physical

examination findings, contending that stability is relative and that Plaintiff’s physical

examination findings were not, in fact, stable. Plaintiff’s Brief, ECF No. 23, pp. 26–27 (citing R.

528–30, 1566, 1570, 1914; Morales v. Apfel, 225 F.3d 310, 319 (3d Cir. 2000)); Plaintiff’s Reply

Brief, ECF No. 29, pp. 7–8. In support, Plaintiff first argues that, in July 2017, she was unable to

sleep because of pain that also affected her daily activities; that she had worsening back pain in

August 2017; and that the September 2017 notation that her fibromyalgia was “stable” meant

that “it was still so intensely painful that she still could not sleep due to pain.” Plaintiff’s Brief,

ECF No. 23, p. 27; Plaintiff’s Reply Brief, ECF No. 29, pp. 7–8. These arguments, which are

based on Plaintiff’s own subjective complaints to medical providers, Plaintiff’s Brief, ECF No.

22

23, p. 27 (citing R. 528–30, 1566, 1570, 1914), are not well taken. See 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] claimant’s own subjective report about her

symptoms[] does not become a medical opinion by virtue of being recorded in treatment notes.”)

(citations omitted). Moreover, for the reasons discussed in more detail below, the ALJ properly

discounted Plaintiff’s subjective statements.

To the extent that Plaintiff argues that being “stable” is an “inherently relative concept”

that did not account for Plaintiff’s worsening condition, Plaintiff’s Brief, ECF No. 23, pp. 26–27;

Plaintiff’s Reply Brief, ECF No. 29, pp. 7–8, the Court is not persuaded that this issue requires

remand. As the Acting Commissioner explains, Defendant’s Brief Pursuant to Local Civil Rule

9.1, ECF No. 26, pp. 16–17, the ALJ did not simply rely on notations in the medical record that

Plaintiff was “stable”; rather, in characterizing Plaintiff’s physical examination findings as

“stable,” the ALJ clearly used that term to mean that such findings were generally unchanged. R.

525–31. That term is supported by the record, and the ALJ did not err in relying on that stability

as one of the reasons for discounting Dr. Obuz’s December 2017 opinion.

Plaintiff further argues that, contrary to the ALJ’s finding, the objective evidence

supports the December 2017 opinion. Plaintiff’s Brief, ECF No. 23, pp. 28–31; Plaintiff’s Reply

Brief, ECF No. 29, p. 8. Although Plaintiff points to certain evidence in the record, see id., the

23

ALJ accurately noted that the actual opinion does not itself “provide any objective support or

explanation for his opinions other than to state the claimant’s diagnoses and/or to state that the

claimant had minimal response to medications.” R. 533; see also R. 350–51 (reflecting the

check-the-box and fill-in-the-blank format); Galette v. Comm’r Soc. Sec., 708 F. App’x 88, 91

(3d Cir. 2017) (“As we have explained, forms that ‘require[ ] the physician only to check boxes

and briefly to fill in blanks . . . are weak evidence at best.’”) (quoting Mason v. Shalala, 994 F.2d

1058, 1065 (3d Cir. 1993)). In any event, the 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.” Johnson v. Comm’r of Soc. Sec., 497 F. App’x 199, 201 (3d Cir.

2012) (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. 2012) 359 (“Courts are not permitted to reweigh

the evidence or impose their own factual determinations [under the substantial evidence

standard].”); Hatton, 131 F. App’x at 880. The Court therefore declines Plaintiff’s invitation to

re-weigh the evidence or to impose her—or this Court’s—different factual determination. See

Chandler, 667 F.3d at 359; Zirnsak, 777 F.3d at 611 (stating that a reviewing court “must not

substitute [its] own judgment for that of the fact finder”).

Plaintiff also complains that the ALJ erred in her evaluation of the reviewing state agency

medical consultants’ opinions. Plaintiff’s Brief, ECF No. 23, pp. 31–35; Plaintiff’s Reply Brief,

ECF No. 29, pp. 2–3. In crafting the physical RFC, the ALJ assigned “great weight” to the

opinions of these state agency medical consultants, explaining as follows:

As for the opinion evidence, the undersigned gives great weight to the prior

administrative findings of state agency medical consultants Mohamed Abbassi,

M.D. and Arthur Pirone, M.D. (Exhibit 8A, 10A). Although they neither treated

nor examined the claimant, they did review the available evidence of record at the

time of their respective November 2017 and February 2018 record reviews. Based

upon their record reviews, they opined the claimant’s degenerative disc disease and

24

fibromyalgia severe. They further assessed the claimant capable of performing

work at the light exertional level with occasional performance of all postural

maneuvers. In support of their opinions, they cited to the evidence of record and

explained the reasoning for their assessments, which included consideration for the

claimant’s subjective complaints of pain, the claimant’s presentation on physical

examinations, and the claimant’s reported daily activities (see Exhibit 8A/6, 8-9;

10A/6, 8-9). Of note, they specifically indicated that the residual functional

capacity assessment was based upon the claimant’s subjective reports of pain and

general multifocal physical complaints (see Exhibit 8A/9). While additional

treatment notes were admitted to the record after they performed their record

reviews, most of these pertained to the period after the date last insured and/or did

not reflect any meaningful change or deterioration in the claimant’s presentation

(see, e.g., Exhibit 43F). Overall, the undersigned finds that these assessments are

consistent with and supported by the medical evidence of record in its entirety.

However, in consideration for the claimant’s reports of pain as well as for the

opinions of the state agency medical consultants rendered in 2013 and 2014, the

undersigned further limited the claimant to no climbing of ladders, ropes, or

scaffolds and no exposure to potential hazards. Finally, the undersigned notes that

the state agency medical consultants are familiar with program rules and

evidentiary requirements, which lends their assessments additional persuasive

value.

R. 531–32.

Plaintiff first contends that the ALJ improperly elevated the opinions of the non-

examining state agency medical consultants over the opinions of Dr. Obuz, a treating physician.

Plaintiff’s Brief, ECF No. 23, pp. 31–32; Plaintiff’s Reply Brief, ECF No. 29, pp. 2–3. In support,

Plaintiff points to the Court’s statement, during the oral argument that preceded the earlier

remand of the matter, that it was a “stretch” to do so:

THE COURT: What do we do with the fact that these DDS medical reviewers,

whose opinions were found to be significant, are elevated over the treating doctor,

who is supported by other reports that were part of, I’m talking about Dr. Obuz?

[DEFENSE COUNSEL]: He is the primary care physician.

THE COURT: Yeah, the primary care. So in looking at, I guess, it was plaintiff’s

brief that talks about the Social Security law on the importance of the treating

physician, the word longitudinal view comes in. And clearly Dr. Obuz has that over

the snapshot from three years earlier that the DDS reviewers take. It just seemed to

me that the opinion takes a long step off first in elevating the DDS reviewers over

the treating, giving the treating little weight. And that stretch, because I think it is

25

a stretch, it seems to me would require either more discussion or more in the record

to permit the ALJ to do that. So that is what I’m taking from it. And I’m anxious to

hear what you have to say about that.

R. 676–77 (emphasis added). However, as the Acting Commissioner points out, Defendant’s

Brief Pursuant to Local Civil Rule 9.1, ECF No. 26, p. 21, the Court based this statement on the

ALJ’s failure to provide “more discussion or more in the record to permit the ALJ to do that.” R.

676. On remand, the 2022 decision provided a more detailed discussion of the state agency

opinions than did the 2016 decision. Compare R. 531–32 (reflecting the ALJ’s discussion in the

2022 decision), with R. 25 (reflecting the ALJ’s two-sentence statement in the 2016 decision).

Plaintiff insists that “the ALJ overall did not provide better reasoning by providing more

reasoning” because the ALJ “revealed erroneous thought processes” and “emphasized alleged

factual circumstances that represent a major misunderstanding of the chronology of events.”

Plaintiff’s Reply Brief, ECF No. 29, p. 3. However, the Court has already explained that the

ALJ’s mistaken reference to the March 2013 opinion as having been rendered in March 2014

was, at worst, harmless and that substantial evidence supports the ALJ’s consideration of Dr.

Obuz’s opinions. Accordingly, this Court is not persuaded that the comment made in earlier

proceedings undermines the ALJ’s thorough consideration of the opinions of the state agency

medical consultants in the 2022 decision.

Plaintiff next contends that the ALJ erred in her consideration of the opinions of Dr.

Khurana and Dr. McLarnon, the state agency consultants who rendered opinions in 2013 and

2014, when she stated that “additional treatment notes do not reflect any meaningful change or

deterioration in the claimant’s presentation, as the claimant has presented in a largely stable

manner despite her reports of pain.” Plaintiff’s Brief, ECF No. 23, pp. 32–33 (citing R. 532)

(internal quotation marks omitted). According to Plaintiff, the record in January 2014 contained

26

only six medical pages, consisting of 53 pages, whereas the record now contains 35 different

medical exhibits, consisting of 860 additional pages, which reflect Plaintiff’s “deterioration[.]”

Id. (citations omitted). This Court is not persuaded that this issue requires remand.

An ALJ may rely on a reviewing state agency physician’s report and opinion even where

there is a lapse of time between the rendering of that report and opinion and the ALJ’s decision.

Cf. Chandler, 667 F.3d at 361 (“The Social Security regulations impose no limit on how much

time may pass between a report and the ALJ’s decision in reliance on it. Only where ‘additional

medical evidence is received that in the opinion of the [ALJ] . . . may change the State agency

medical . . . consultant’s finding that the impairment(s) is not equivalent in severity to any

impairment in the Listing,’ is an update to the report required.”) (emphasis in original) (citations

omitted); Wilson v. Astrue, 331 F. App’x 917, 919 (3d Cir. 2009) (“Generally, an ALJ is required

to consider the reports of State agency medical consultants; however, there is no requirement that

an ALJ must always receive an updated report from the State medical experts whenever new

medical evidence is available.”). For the reasons already noted in the Court’s consideration of the

medical record above, Plaintiff has not shown that the ALJ erred in assigning great weight to the

opinions of Drs. Khurana and McLarnon.

Plaintiff also challenges the ALJ’s consideration of the opinions of Drs. Abbassi and

Pirone, state agency medical consultants who reviewed the record in 2017 and 2018, contending

that these consultants did not consider—and were apparently unaware of—Dr. Obuz’s opinions,

which “alone undermines the ALJ’s reliance on these opinions.” Plaintiff’s Brief, ECF No. 23,

pp. 33–34. However, this Court has already explained that the ALJ did not err in discounting Dr.

Obuz’s opinions. Accordingly, any error in the failure of Dr. Abbassi or Dr. Pirone to consider

Dr. Obuz’s opinions is, at most, harmless error that does not require remand.

27

In short, for all these reasons, the Court concludes that the ALJ’s consideration of the

opinions of Dr. Obuz and of the state agency medical consultants enjoys substantial support in

the record, as does the ALJ’s physical RFC determination.

B. Mental RFC and Opinion Evidence

Plaintiff also challenges the ALJ’s mental RFC as inconsistent with the ALJ’s

consideration of the state agency psychological consultants. Plaintiff’s Brief, ECF No. 23, pp.

35–39; Plaintiff’s Reply Brief, ECF No. 29, pp. 9–11. For the following reasons, this Court

disagrees.

As previously noted, the ALJ’s RFC limited Plaintiff to, inter alia, “uncomplicated tasks

(defined as straightforward tasks, such as those typically learned in less than 30 days); and she

could maintain concentration, persistence, and pace for 2-hour blocks of time throughout the

workday consistent with regularly scheduled breaks and lunch.” R. 523. In crafting this portion

of the RFC, the ALJ assigned “great weight” to the opinions of the reviewing state agency

psychological consultants, Consultants Feldman and Mangel, explaining as follows:

The undersigned gives great weight to the prior administrative findings of state

agency psychological consultants Helen Feldman, Ph.D. and Howard Mangel,

M.D. (Exhibit 8A, 10A). Although they neither treated nor examined the claimant,

they did review the available evidence of record at the time of their respective

December 2017 and January 2018 record reviews. Based on their record reviews,

they found the claimant’s depressive disorder severe, and they assessed moderate

limitations in all paragraph B criteria except for social interaction, which they found

to be mild. They further found the claimant could follow simple instructions;

sustain concentration, persistence, and pace; and relate and adapt in simple work-

like settings. While additional treatment notes were admitted to the record after they

performed their reviews, these additional treatment notes do not reflect any

meaningful change or deterioration in the claimant’s presentation (see, e.g., Exhibit

43F). They both cited to the evidence of record and explained the reasoning for

their assessments, which included consideration for the claimant’s presentation

during the psychological consultative exam, her otherwise minimal course of

treatment for mental health symptoms, and her reported daily activities (see Exhibit

8A/11-12). Overall, the undersigned finds these assessments are generally

consistent with and supported by the medical evidence. However, the undersigned

28

did not find support for a moderate limitation in adapting or managing oneself. As

noted above, treating providers regularly observed the claimant to present in a well-

groomed manner on exams. There is also no evidence that she was unable to attend

appointments alone or as scheduled. The claimant also reported caring for her

disabled daughter on a daily basis as through her date last insured (see Exhibit 4E,

22E, 26E). Finally, the claimant was not observed to have difficulty controlling her

emotions during her numerous follow up visits with treating providers. Thus, the

undersigned did not adopt the limitation to simple worklike settings. Nonetheless,

the undersigned notes that the vocational expert testified that this additional

limitation would not significantly erode the light exertional base. The undersigned

otherwise included limitations consistent with these opinions but phrased these

limitations in more vocationally relevant terms. Finally, the undersigned notes that

the state agency psychological consultants are familiar with program rules and

evidentiary requirements, which lends their assessments additional persuasive

value.

R. 532–33.

Plaintiff first complains that the ALJ, despite assigning “great weight” to these opinions,

failed to incorporate—without explanation—Consultant Feldman’s opined moderate limitation in

Plaintiff’s ability to understand, remember and carry out detailed instructions; maintain attention

and concentration for extended periods; perform activities within a schedule, maintain regular

attendance, and be punctual within customary tolerances; sustain an ordinary routine without

special supervision; work in coordination with or in proximity to others without being distracted

by them; complete a normal workday or week without interruptions from psychologically based

symptoms and to perform at a consistent pace without unreasonable rest periods; and respond

appropriately to routine changes in the work setting. Plaintiff’s Brief, ECF No. 23, pp. 36–39

(citing, inter alia R. 532–33, 631–32; Annette S. v. Kijakazi, No. 1:21-CV-2153, 2022 WL

2980982, at *7 (D.N.J. July 28, 2022)); Plaintiff’s Reply Brief, ECF No. 29, pp. 9–11. However,

as the Acting Commissioner explains, Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF

No. 26, pp. 23–25, these limitations appeared in Section I of the Disability Determination

Explanation form, which groups 20 mental functions into categories that are rated as not

29

significantly limited, moderately limited, markedly limited, no evidence of limitation in this

category, or not ratable on available evidence. R. 631–32; see also POMS DI 24510.060(B)(2),

https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510060. This section of the Program Operations

Manual System (“POMS”) further explains that “Section I is merely a worksheet to aid in

deciding the presence and degree of functional limitations and the adequacy of documentation

and does not constitute the RFC. Id. (emphasis in the original). The United States Court of

Appeals for the Third Circuit has confirmed this interpretation of the POMS. Smith v. Comm’r of

Soc. Sec., 631 F.3d 632, 636–37 (3d Cir. 2010) (citing POMS DI 24510.060 for this proposition);

see also Wise v. Comm’r of Soc. Sec., 626 F. App’x 357, 360 (3d Cir. 2015) (“But we have said

that ALJs are not required to give any weight to these fill-in-the-blank and checklist portions of

RFC assessments and that their focus instead should be on the narrative portions of the

assessments where the medical experts expound on their opinions.”) (citations omitted).

Moreover, in finding moderate limitations in the areas of concentration and persistence and

adaptation, Consultant Feldman expressly referenced her narrative discussion under the heading,

“MRFC – Additional Explanation.” R. 632–33 (referring to “see below” when asked to explain

in narrative form the limitations in concentration and persistence and in adaptation). In that

narrative explanation, Consultant Feldman expressly found that Plaintiff could, inter alia,

“follow simple instructions, can sustain CPP, relate and adapt in simple work-like settings.” R.

633. Stated differently, Consultant Feldman detailed and explained in the narrative discussion the

parameters of Plaintiff’s mental functional limitations. See id.10 The ALJ accommodated this

10 Accordingly, the MRFC narrative explanation regarding Plaintiff’s moderate mental

limitations and abilities in the present case is distinguishable from Annette S, which expressly

incorporated by reference the limitations identified in Section I. See Annette S., 2022 WL

2980982, at *7–8 (explaining in the narrative that the claimant, inter alia, was “[c]apable of

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limitation by limiting Plaintiff’s RFC to the performance of “uncomplicated tasks (defined as

straightforward tasks, such as those typically learned in less than 30 days); and she could

maintain concentration, persistence, and pace for 2-hour blocks of time throughout the workday

consistent with regularly scheduled breaks and lunch.” R. 523. The ALJ’s limitation to

performing uncomplicated tasks that are typically learned in less than 30 days corresponds with

the state agency’s definition of unskilled work. See 20 C.F.R. § 404.1568(a) (defining unskilled

work as “work which needs little or no judgment to do simple duties that can be learned on the

job in a short period of time” and that “a person can usually learn to do the job in 30 days, and

little specific vocational preparation and judgment are needed”); Hess v. Comm’r Soc. Sec., 931

F.3d 198, 210 (3d Cir. 2019) (“A limitation to ‘simple tasks’ is fundamentally the same as a

limitation ‘to jobs requiring understanding, remembering, and carrying out only simple

instructions and making only simple work-related decisions[.]’”) (citations omitted); Menkes v.

Astrue, 262 F. App’x 410, 412–13 (3d Cir. 2008) (“The term ‘simple routine tasks,’ in the

context of the disability proceedings, generally refers to the non-exertional or mental aspects of

work. For example, performing a ‘simple routine task’ typically involves low stress level work

that does not require maintaining sustained concentration.”).

To the extent that Plaintiff insists that the ALJ should have included in the RFC a need

for additional breaks, and erred by failing to explain why Plaintiff could concentrate and persist

in two-hour blocks throughout the workday without additional breaks, those arguments are not

well taken. Plaintiff’s Brief, ECF No. 26, pp. 37–38; Plaintiff’s Reply Brief, ECF No. 29, pp. 9–

11. As detailed above, Consultant Feldman expressly found, and Consultant Pirone affirmed, that

occupational functioning within limits defined above”). Accordingly, that case is inapposite and

Plaintiff’s reliance on that case is unavailing.

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Plaintiff could “sustain CPP [concentration, persistence or maintain pace][.]” R. 633, 643. In

adopting a mental RFC for uncomplicated (simple) tasks, the ALJ expressly relied on, among

other things, Plaintiff’s presentation at examinations, her minimal treatment for mental health

symptoms, her daily activities such as caring for her disabled daughter through the date last

insured, engaging in light household cleaning, independence with bathing and dressing,

preparing meals, doing laundry twice per week for 2 hours at a time, going outside daily,

independently operating a motor vehicle, shopping in stores once per week with her husband,

independence in managing money, watching television 45 minutes daily, reading 30 minutes

daily, attending church for 90 minutes per week, following instructions well, and getting along

with others well. R. 523, 525, 533. On this record, the Court cannot conclude that the ALJ erred

in considering the state agency psychological consultants’ opinions or in crafting the mental

RFC.11 See Hess v. Comm’r Soc. Sec., 931 F.3d 198, 211 (3d Cir. 2019) (stating that “as 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’” and explaining that

this conclusion “flows directly from our decision in Ramirez [v. Barnhart, 372 F.3d 546, 554

(3rd Cir. 2004)]”); 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

11 The ALJ did not adopt every aspect of the state agency consultants’ limitations and offered an

adequate explanation for doing so. R. 533 (“However, the undersigned did not find support for a

moderate limitation in adapting or managing oneself. As noted above, treating providers

regularly observed the claimant to present in a well-groomed manner on exams. There is also no

evidence that she was unable to attend appointments alone or as scheduled. The claimant also

reported caring for her disabled daughter on a daily basis as through her date last insured (see

Exhibit 4E, 22E, 26E). Finally, the claimant was not observed to have difficulty controlling her

emotions during her numerous follow up visits with treating providers. Thus, the undersigned did

not adopt the limitation to simple worklike settings.”). In any event, the ALJ went on to note that

the vocational expert testified that this additional limitation would not significantly erode the

light exertional base. Id.

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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”).

For these reasons, substantial evidence supports the ALJ’s consideration of the opinions

of the reviewing state agency psychological consultants and the mental RFC.

C. Subjective Statements

Plaintiff also challenges the ALJ’s consideration of her subjective complaints. Plaintiff’s

Brief, ECF No. 23, pp. 39–46; Plaintiff’s Reply Brief, ECF No. 29, pp. 11–12. 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

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, 2016 WL 1119029 (March 16, 2016). 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

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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. § 404.1529(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

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.”).

Here, the ALJ followed this two-step evaluation process. The ALJ specifically considered

Plaintiff’s subjective complaints. R. 524–25. The ALJ found that Plaintiff’s medically

determinable impairments could reasonably be expected to cause symptoms, but that her

statements “concerning the intensity, persistence and limiting effects of these symptoms are not

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entirely consistent with the medical evidence and other evidence in the record for the reasons

explained in this decision.” R. 24. The ALJ explained why the record evidence did not support

Plaintiff’s subjective statements, expressly noting Plaintiff’s fibromyalgia-related symptoms, as

follows:

As for the claimant’s statements about the intensity, persistence, and limiting

effects of her symptoms, they are inconsistent because the claimant’s presentation

on objective examinations has largely been stable despite reports of worsening

chronic pain. While she did present with decreased range of motion [of the] cervical

and lumbar spines, tenderness in the paracervical and paralumbar areas, and

positive fibromyalgia tender points, she nonetheless regularly presented as alert,

fully oriented, and in no acute distress, and without deficits in strength, sensation,

reflexes, or gait. While she often reported bilateral shoulder pain, worse on the

right, she did not present with range of motion, strength, or sensation deficits in

either shoulder on exams, and imaging of her right shoulder was normal. Further,

despite her reported high levels of pain, which she often rated as 8-9/10, she did not

require regular emergency treatment for exacerbations of her pain. While the

claimant’s fibromyalgia symptoms, including pain, fatigue, and brain fog, along

with the mild degenerative changes seen in her cervical and lumbar spines, do

support finding that she was limited in functioning, her clinical presentation and

course of treatment does not support finding her more limited than outlined above.

This range of light exertional work is further supported by the claimant’s reported

activities. For example, in early 2017, the claimant reported that she had recently

traveled to Ecuador and she reported feeling better on this trip, and she did not

report any physical or mental health limitations associated with traveling (Exhibit

40F/1). Additionally, a function reported filled out by the claimant in August 2017,

just prior to her date last insured, reflects that the claimant’s activities included

preparing her disabled daughter for the day by bathing and dressing her; engaging

in light household cleaning; performing home exercises with the help of her

husband; independence with bathing and general independence with dressing;

preparing meals weekly; doing laundry twice per week for 2 hours at a time; going

outside daily by walking, driving, or riding in a vehicle; independently operating a

motor vehicle; shopping in stores once per week with her husband; independence

with managing money; watching television 45 minutes daily; reading 30 minutes

daily; attending church 90 minutes per week; following instructions well; and

getting along with others well (Exhibit 22E). The claimant reported engaging in

similar activities in a function report dated January 31, 2018, just after her date last

insured (Exhibit 26E).

R. 524–25 (emphasis added); see also R. 534 (explaining that the RFC “supported by the

objective medical evidence of record, the claimant’s subjective complaints, the fact that no

35

treating or examining medical or psychological professional persuasively opined limitations

beyond the residual functional capacity, and the impact of the claimant’s impairments upon her

ability to sustain more than minimal activity”). 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. See Van Horn, 717 F.2d at 873; Miller, 719 F. App’x at

134; Izzo, 186 F. App’x at 286; Benoit v. Saul, No. 1:18-CV-02224, 2019 WL 8301636, at *6

(M.D. Pa. Dec. 6, 2019), report and recommendation adopted, No. 1:18-CV-2224, 2020 WL

1445857 (M.D. Pa. Mar. 25, 2020) (finding that substantial evidence supported the ALJ’s

decision that the claimant, who suffered from, inter alia, fibromyalgia, was not disabled where,

among other things, her “allegations of pain []were out of proportion to fibromyalgia according

to Benoit’s rheumatologist”); Decker v. Colvin, No. 1:14-CV-01081, 2015 WL 3838234, at *11–

13 (M.D. Pa. June 22, 2015) (finding, where the claimant had, inter alia, fibromyalgia, that “the

ALJ sufficiently explained her reasons for finding Decker’s subjective complaints overstated”

and that they “were not fully consistent longitudinally, particularly with respect to her abilities

and activities of daily living and the objective medical evidence which showed that her

symptoms improved with medication; her pain symptoms were not consistently reported as

debilitating; and she had a normal gait and her extremities were within normal limits”); cf. Orbin

v. Barnhart, 38 F. App’x 822, 822–23 (3d Cir. 2002) (“[T]he relevant consideration is not the

fact that Orbin has been diagnosed, but rather to what extent her illness causes functional

limitations. . . . . Orbin relies on the diagnosis of fibromyalgia to assert that she is totally

incapacitated, but doctors have found absolutely no medical evidence to support this assertion.”).

However, in challenging the ALJ’s consideration in this regard, Plaintiff argues that the

ALJ wrongly relied on purportedly stable findings and that the ALJ failed to properly consider

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Plaintiff’s fibromyalgia, a condition that waxes and wanes. Plaintiff’s Brief, ECF No. 23, pp. 40–

43; Plaintiff’s Reply Brief, ECF No. 29, pp. 11–12. The Court is not persuaded that this issue

requires remand.

As to Plaintiff’s challenges based on her fibromyalgia, the Court notes that this disease

“is a complex medical condition characterized primarily by widespread pain in the joints,

muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” SSR 12-2p.

Under this Ruling, a claimant can establish fibromyalgia as a severe, medically determinable

impairment by presenting “appropriate medical evidence” that satisfies one of the two sets of

criteria for the diagnosis, based on criteria established by the American College of

Rheumatology (“ACR”): the 1990 ACR Criteria for the Classification of Fibromyalgia (the

“1990 Criteria”),12 or the 2010 ACR Preliminary Diagnostic Criteria (the “2010 Criteria”).13 Id.;

12 Under the 1990 Criteria, an ALJ may find that a person suffers from fibromyalgia if that person

has all three of the following: (1) a history of widespread pain in all quadrants of the body that

has persisted for at least three months; (2) at least eleven positive tender points bilaterally both

above and below the waist on physical examination; and (3) “[e]vidence that other disorders that

could cause the symptoms or signs were excluded. Therefore, it is common in cases involving

[fibromyalgia] to find evidence of examinations and testing that rule out other disorders that

could account for the person’s symptoms and signs.” Id.

13 Under the 2010 Criteria, an ALJ may find that a person suffers from fibromyalgia if that person

has all three of the following: (1) a history of widespread pain; (2) “[r]epeated manifestations of

six or more [fibromyalgia] symptoms, signs, or co-occurring conditions, especially

manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed,

depression, anxiety disorder, or irritable bowel syndrome”; and (3) “[e]vidence that other

disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring

condition were excluded[.]” Id. Symptoms or signs include “somatic symptoms,” including the

following: muscle pain, irritable bowel syndrome, fatigue or tiredness, thinking or remembering

problems, muscle weakness, headache, pain or cramps in the abdomen, numbness or tingling,

dizziness, insomnia, depression, constipation, pain in the upper abdomen, nausea, nervousness,

chest pain, blurred vision, fever, diarrhea, dry mouth, itching, wheezing, Raynaud’s

phenomenon, hives or welts, ringing in the ears, vomiting, heartburn, oral ulcers, loss of taste,

change in taste, seizures, dry eyes, shortness of breath, loss of appetite, rash, sun sensitivity,

hearing difficulties, easy bruising, hair loss, frequent urination, or bladder spasms. Id. Some co-

occurring conditions may include irritable bowel syndrome, depression, anxiety disorder, chronic

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see also Foley v. Barnhart, 432 F. Supp.2d 465, 475 (M.D. Pa. 2005) (“These tender points are

called “trigger points.” . . . . All points may not be painful at all times in every person. . . . The

pain may vary in intensity according to the time of day, weather, activity level, stress, and sleep

patterns.”) (citations omitted).

As set forth above, the ALJ expressly considered Plaintiff’s fibromyalgia symptoms

when evaluating her subjective complaints. R. 524. Notably, the ALJ did not completely

discount Plaintiff’s subjective complaints; instead, the ALJ explained how the RFC took into

consideration Plaintiff’s complaints of pain. R. 524–25, 534; see also Longboat v. Berryhill, No.

CV 17-146-E, 2018 WL 4157067, at *1 (W.D. Pa. Aug. 30, 2018) (finding, inter alia, that the

“ALJ did not entirely discount Plaintiff's allegations of pain in his decision; rather, he

appropriately found that Plaintiff indeed suffered from moderate pain, but still retained the

capacity for light work with additional restrictions”); Morel v. Colvin, No. 14-2934, 2016 WL

1270758, at *6 (D.N.J. Apr. 1, 2016) (“The claimant need not be pain-free to be found ‘not

disabled.’”). Moreover, and as the Court has already explained, the ALJ properly considered the

objective evidence relating to Plaintiff’s degenerative disc disease of the cervical and lumbar

spines as well as fibromyalgia. See Trauterman v. Comm’r of Soc. Sec., 296 F. App’x 218, 220

(3d Cir. 2008) (explaining that the “fatal flaw” in the claimant’s argument that the ALJ failed to

properly consider the claimant’s fibromyalgia is that the claimant was also diagnosed with other

physical impairments (cervical spine disc herniation, lumbar spine degenerative joint disease,

and carpal tunnel syndrome) and that, “[i]n light of these diagnoses, it was quite appropriate for

the ALJ to consider the objective medical evidence of record”).

fatigue syndrome, irritable bladder syndrome, interstitial cystitis, temporomandibular joint

disorder, gastroesophageal reflux disorder, migraine, or restless leg syndrome. Id.

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Plaintiff goes on to challenge the ALJ’s consideration of Plaintiff’s activities, arguing

that the ALJ failed to consider Plaintiff’s “many qualifying statements” regarding those

activities. Plaintiff’s Brief, ECF No. 23, pp. 43–46. The ALJ expressly considered Plaintiff’s

testimony that, inter alia, on a “good day, she wakes up, takes a shower, and watches a little

television”; her testimony that, since stopping work in 2013, she passes the time by reading

books and by watching television, although she later testified that she has difficulty

concentrating more than 15 minutes at a time and has problems with memory; and evidence that,

although she helps her disabled daughter get dressed and packs her lunch on good days, her

daughter has had a caretaker from 8 am until 4 pm since 2017. R. 524. In addition, as previously

noted, the ALJ observed that, prior to the date on which Plaintiff was last insured, she bathed and

dressed her disabled daughter, she engaged in “light” household cleaning, her husband helped

her perform home exercises, she watched television for 45 minutes and read for 30 minutes per

day, and attended church for 90 minutes per week. R. 524–25. Plaintiff complains that the ALJ

improperly considered Plaintiff’s trip to Ecuador; however, this was but one activity that the ALJ

considered when assessing Plaintiff’s subjective complaints. Id.

Finally, to the extent that Plaintiff refers to other evidence that she believes supports her

subjective statements, this Court has already explained that it must affirm the ALJ’s decision

where, as here, it is supported by substantial evidence even if Plaintiff points to evidence that

supports the opposite conclusion. See Johnson, 497 F. App’x at 201.

For all these reasons, the Court concludes that the ALJ sufficiently explained her

reasoning in assessing Plaintiff’s subjective complaints, and the ALJ’s findings in this regard are

supported by substantial evidence in the record and are therefore entitled to this Court’s

deference. See SSR 16-3p; Miller, 719 F. App’x at 134; cf. Malloy v. Comm’r of Soc. Sec., 306

39

F. App’x. 761, 765 (3d Cir. 2009) (“Credibility determinations as to a claimant’s testimony

regarding pain and other subjective complaints are for the ALJ to make.”) (citing Van Horn v.

Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)); Davis v. Comm’r Soc. Sec., 105 F. App’x 319,

322 (3d Cir. 2004) (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”). Accordingly, the ALJ’s assessment

of Plaintiff’s subjective complaints cannot serve as a basis for remand of this action. Id.

VI. CONCLUSION

For these reasons, the Court AFFIRMS the Commissioner’s decision.

The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42

U.S.C. § 405(g).

IT IS SO ORDERED.

Date: December 30, 2024 s/Norah McCann King

NORAH McCANN KING

UNITED STATES MAGISTRATE JUDGE

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