# Sherman v. O'Malley

> District Court, M.D. Pennsylvania · January 16, 2025

URL: https://www.frixlaw.com/law-library/cases/10782861

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 16, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- noting that the scope of review on legal matters is plenary

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TERRY L. SHERMAN : Civil No. 1:24-CV-203
:
Plaintiff :
:
v. :
: (Chief Magistrate Judge Bloom)
CAROLYN COLVIN, Acting :
Commissioner of Social Security,1 :
:
Defendant :

MEMORANDUM OPINION

I. Introduction
On June 29, 2021, Terry Sherman filed an application for
supplemental security income under Title XVI of the Social Security Act.
(Tr. 149). Following a hearing before an Administrative Law Judge
(“ALJ”), the ALJ found that Sherman was not disabled from her alleged
onset of disability on May 1, 2021, through January 10, 2023, the date of
the ALJ’s decision. (Tr. 15-25).

1 Carolyn Colvin became the Acting Commissioner of Social Security on
November 30, 2024. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure and 42 U.S.C. § 405(g), Carolyn Colvin is substituted as the
defendant in this suit.
1
Sherman now appeals that decision, arguing the ALJ’s decision is
not supported by substantial evidence. ( Doc. 10). After a review of

the record, we conclude that the ALJ’s decision is supported by
substantial evidence. Therefore, we will affirm the decision of the
Commissioner.

II. Statement of Facts and of the Case

On June 29, 2021, Sherman applied for disability insurance
benefits. (Tr. 18). She cited an array of physical and mental impairments
allegedly entitling her to those benefits, including major depressive
disorder, mild degenerative disc disease of the lumbar spine, and obesity.

(Tr. 24). Sherman was 54 years old at the time of the alleged onset of
disability, had at least a high school education, and has no past relevant
work experience. (Tr. 30).

With respect to these alleged impairments, the record revealed that
Sherman previously applied for disability insurance benefits, that
application was denied, as was its appeal. , No.

3:21-CV-717, 2022 WL 3567616 (M.D. Pa. Aug. 18, 2022). Two medical
opinions originally generated for that case provide the earliest relevant

2
medical records for the instant appeal. On January 5, 2018, state medical
consultant Dr. Charles LaJeunesse reviewed Sherman’s medical records.

(Tr. 84-90). While he noted that Sherman reported she “is paranoid and
depressed [,]” he also stated there was “no evidence of . . . paranoia in the
evaluation setting.” (Tr. 89, 85). As to her activities of daily living, Dr.

LaJeunesse found that Sherman could dress, bathe, and groom herself,
assist her boyfriend with the laundry, shopping, and management of

money, could watch TV and listen to music, but that her boyfriend did
most of their cooking and Sherman socialized only with him and her
mother. (Tr. 86).

Dr. Jennifer Betts, who also reviewed Sherman’s medical records in
conjunction with her initial application on August 30, 2019, did not find
Sherman to be paranoid in the clinical sense, explaining that Sherman

“primarily reported symptoms of social anxiety, though [Sherman]
described the symptoms as paranoia.” (Tr. 79). As to Sherman’s
activities of daily living, Dr. Betts concurred with Dr. LaJeunesse’s

findings, adding only that Sherman sometimes socialized with two of her
neighbors. (Tr. 79).

3
On April 23, 2020, Sherman treated with Community Counseling
Services of Northeastern Pennsylvania (“CCS”). (Tr. 370). Sherman was

a patient at CCS for 15 years. (Tr. 657). Certified Registered Nurse
Practitioner (“CRNP”) Kerri Netti’s notes show that Sherman was
complaining of anxiety in public places, was positive for paranoia, and

“[f]eels people are talking about her [,]” but had a generally euthymic
mood. (Tr. 370-72). She assessed Sherman with major depressive

disorder with psychotic features. (Tr. 371).
Sherman visited Geisinger Medical Group’s Kingston facility on
May 19, 2020. (Tr. 515). There, she complained of acute pain in her right

foot, lower back, and hip, and she was referred for x-rays and physical
therapy. (Tr. 515, 518-19) Sherman checked into the emergency
department at Geisinger Wyoming Valley on June 7, 2020, complaining

of swelling in her right foot. (Tr. 509). She received x-rays of her chest
and ankle, which Dr. Charles Brown noted were unremarkable. (Tr. 605,
608). A spinal x-ray was also performed on June 16, and Dr. Nicholas

Pitzen found the imaging to be generally unremarkable. (Tr. 601).

4
Treatment notes from a July 7, 2020, telephone appointment with
CCS indicated that Sherman’s thought content was “relevant” and did

not contain findings of paranoia. (Tr. 368). At another session on
September 2, 2020, Sherman denied “significant anxiety” and
“paranoia[.]” (Tr. 366). On December 29, 2020, Sherman had an intake

session with Dr. Tatiana Figueredo at Geisinger, at which time a mental
status examination revealed that Sherman was “alert, oriented to person,

place, and time,” and had a normal mood, affect, judgment, and memory.
(Tr. 484).
Two weeks later, on January 13, 2021, Sherman’s friend and

neighbor Paul Ostaszewski initiated a wellness check on her, which
resulted in the police bringing Sherman into the emergency department
at Geisinger South Wilkes Barre (“GSWB”). (Tr. 436, 437). Sherman

reported she was there for ear pain, but Dr. Bo Zhu noted that she was
alert “to person and place, [but] not to time[.]” (Tr. 432). Dr. Zhu wrote
that Sherman “can tell me her full name, knows she is in the hospital but

cannot tell me the time/year. She thinks it is 2012.” (Tr. 436). This began
a weeklong hospital stay for Sherman, wherein multiple doctors opined

5
that at various times Sherman: could not recall her name, lacked capacity
to make medical decisions, would stare in silence when presented with

questions she could not answer, could not state where she was located,
could not recall why she was in the hospital, and would sometimes
become confused. (Tr. 441, 444 448, 456, 460, 465). Despite those

symptoms, Dr. Michael Coffey found that because Sherman did “not
exhibit overt delusions” she did not “meet criteria for psychiatric

admission.” (Tr. 464).
During her week at GSWB, Sherman received a CT scan, an ECG
evaluation, and an MRI, all of which were generally unremarkable and

failed to explain her condition, though Sherman did end the MRI early.
(Tr. 428, 445, 572, 582). With time, the symptoms passed, and when Dr.
Tina Hockenbury evaluated Sherman on January 19, she noted Sherman

was “answering all questions appropriately.” (Tr. 470). When she was
released on January 20, Dr. Jennifer Hudson, Sherman’s primary care
provider, identified acute encephalopathy as the principal diagnosis. Dr.

Hanson also noted that Sherman’s left “leg has been numb and painful.
She cannot even stand on it.” ( ).

6
On September 8, 2021, Sherman filled out a function report
pursuant to her application for disability insurance. (Tr. 274). She stated

that “depression impairs my attention and memory and decision
making[,]” and identified PTSD as an issue. ( .). As to her activities of
daily living, Sherman explained that she could cook (slowly,) clean and

do laundry (but it took “all day[,]”) could shop on her phone, pay bills,
handle savings, count change, use a checkbook, watch TV, and play

games on the computer or phone to the point of losing concentration. (Tr.
274-83). She also stated she rarely went outside because of her paranoia.
(Tr. 276). Regarding her physical impairments at this time, an x-ray of

Sherman’s spine in October of 2021 revealed mild spondylosis in the
lumbar spine, and an increase in lumbar lordosis since her November 24,
2018, x-rays. (Tr. 390).

On October 21, 2021, Sherman underwent an internal medicine
examination with CRNP Tara Cywinski. (Tr. 376). CRNP Cywinski
recorded that Sherman had daily pain that radiated from her back to her

hip and rated a seven out of ten, spiking to nine out of ten with increased
exertion. ( ). CRNP Cywinski ultimately diagnosed Sherman as

7
having chronic low back pain with left lower extremity radiculopathy and
found minimal physical restrictions for Sherman outside of some

standing, walking, and sitting limitations. (Tr. 380-85).
On July 26, 2022, Sherman began therapy with Ms. Cecelia Gulius
at Children’s Service Center. (“CSC”) (Tr. 703). On September 22, at

Sherman’s second CSC session, Ms. Gulius noted that Sherman “reports
that her paranoid [sic] has been getting worse . . . [is] staying in her home

more due to paranoid thinking . . . [f]eels others are talking about her.”
(Tr. 706). Sherman told Ms. Gulius that “she has lost 2 jobs recently due
to her paranoia and social anxiety.” (Tr. 707).

On November 29, 2022, Ms. Gulius filled out a medical opinion form
relating to Sherman’s application for disability benefits. (Tr. 783). She
found that Sherman had many “extreme” and “marked” limitations in her

mental ability to work. ( ). Ms. Gulius explained that because of
Sherman’s “paranoia she frequently has had to take breaks in the past,
would feel her co-workers were talking/plotting against her.” ( ).

It is against this factual backdrop that the ALJ conducted a hearing
in Sherman’s case on October 15, 2022. Sherman and a vocational expert

8
both testified at this hearing. (Tr. 39-73). Following this hearing, on
January 10, 2023, the ALJ issued a decision denying Sherman’s

application for benefits. (Tr. 18-31). In that decision, the ALJ first
concluded that since Sherman’s alleged onset of disability, she had not
engaged in substantial gainful activity. (Tr. 19). At Step 2 of the

sequential analysis that governs Social Security cases, the ALJ found
that Sherman had the following severe impairments: major depressive

disorder, mild degenerative disc disease of the lumbar spine, and obesity.
(Tr. 20). The ALJ further concluded that while Sherman suffered from
hearing loss and headaches, these impairments were non-severe. ( ).

At Step 3 the ALJ determined that these impairments did not meet or
equal the severity of a listed impairment under the Commissioner’s
regulations. (Tr. 21).

Between Steps 3 and 4 the ALJ concluded that Sherman retained
the residual functional capacity to:
[P]erform medium work as defined in 20 CFR 416.967(c)
except that the claimant is limited to frequent stooping,
crouching, and use of ramps and climbing stairs, but
occasional balancing, kneeling, and crawling and never
climbing ladders, ropes, or scaffolds. The claimant can
tolerate occasional exposure to vibration. The claimant can
9
perform jobs that would take no more than thirty days of
training to learn with a specific vocational preparation (SVP)
of 2, which are generally classified as unskilled. The claimant
can understand, remember, and carry out simple instructions
and perform simple, routine, repetitive tasks. The claimant
can perform jobs that would be considered “low stress”, in that
they would involve only occasional, simple decision making
and only occasional, gradual changes in the work duties and
work setting. The claimant is limited to occasional exposure
to customers and the general public.

(Tr. 24).

In reaching this RFC determination, the ALJ considered the
objective medical record detailed above, the medical opinion evidence, the
prior administrative medical findings, and Sherman’s reported
symptoms. (Tr. 24). As to Sherman’s physical impairments, the ALJ
found the opinion of Dr. Kathleen Sasnauskas, a state agency consultant,
“persuasive, as it is consistent with the evidence of record.” (Tr. 27). That
opinion found Sherman capable of “a reduced range of medium exertion
work that involves frequent postural maneuvers, but never climbing
ladders, ropes, or scaffolds and avoids concentrated exposure to extreme
cold and heat, wetness, humidity, noise, vibration, pulmonary irritants,
and hazards [.]” ( ). The ALJ stated that opinion was consistent with
the evidence, which reflected:
10
[V]ery limited treatment for complaints of back pain during
the period at issue, only mild degenerative findings on
diagnostic imaging, the claimant’s ability to perform a wide
variety of daily activities, and consultative examination
findings that note antalgic gait, reduced squat, reduced
lumbar range of motion, and positive straight leg raise testing
on the right, but generally intact to only mildly reduced motor
strength and sensation.

( ).

In contrast, the ALJ found the opinion of Dr. Crescenzo Calise,
another state agency consultant, “not persuasive.” ( ). Dr. Calise
opined that Sherman could lift and carry up to 25 pounds occasionally
and frequently; frequently stoop, crouch, and climb ramps and stairs, but
only occasionally balance, kneel, and crawl and never climb ladders,
ropes, or scaffolds; has limited near and far acuity; and that she should
avoid concentrated exposure to extreme cold and heat, wetness,
humidity, noise, vibration, pulmonary irritants, and hazards. (Tr. 142-
48). The ALJ found that this opinion was generally inconsistent with the
evidence of record quoted above, as well as with Sherman’s
ophthalmological record. (Tr. 27).
As to Sherman’s mental health impairments, the ALJ found the

state agency opinions at both the initial and reconsideration level to be
11
“generally persuasive.” (Tr. 28). The ALJ found those opinions to be
“relatively consistent with the evidence of record [,]” which contained

reports of “paranoia and ruminating or racing flow of thought [,]” yet
“generally reflect[ed] reports of stable mood and intact memory skills,
good concentration skills and attention span, coherent and goal directed

thought processes, normal cognitive skills, good fund of knowledge[.]”
( ). The ALJ also noted that the opinions were consistent with

Sherman’s medical records in that those records were “devoid of
emergency room visits, participation in a partial hospitalization
program, or inpatient hospitalizations.” ( ).

Although the ALJ determined Ms. Gulius was not an acceptable
medical source, he considered her opinion and found it “not persuasive,
as it is generally inconsistent with and not supported by the evidence.”

(Tr. 29). The ALJ found the opinion insufficiently supported as well,
noting that while “the [CSC] treatment records themselves note the
reports of paranoia . . . [those records] were otherwise within normal

limits [and] are generally devoid of referrals for more intensive
treatment.” ( ).

12
With respect to Sherman’s symptoms the ALJ noted that while
Sherman’s “medically determinable impairments could reasonably be

expected to cause the alleged symptoms [,]” that her “statements
concerning the intensity, persistence, and limiting effects of her
impairments were not entirely consistent with the medical evidence.”

(Tr. 25). As to her mental health, Sherman testified that her paranoia
had led to her termination at her most recent job and had caused issues

with at least one other job. (Tr. 50-51). She testified that she took
Seroquel, Trazodone, Zoloft, and gabapentin, and that they helped her
“sometimes[.]” (Tr. 53-54). Sherman reported that her lower back pain

affected her ability to do household chores and other tasks. (Tr. 56-57).
The ALJ noted that with respect to her physical impairments, “in
addition to [Sherman’s] limited, routine, and conservative course of

treatment” she had “retained the ability to perform a wide range of daily
activities” including “light exercise.” ( ). The ALJ held that despite
Sherman’s “statements about the intensity, persistence, and limiting

effects of her symptoms, they do not support greater limitations than
those accounted for herein [,]” and that the evidence supported the

13
physical limitations in the RFC. (Tr. 27). Regarding her alleged mental
limitations, the ALJ determined that Sherman’s reported symptoms

were inconsistent with the lack of psychiatric inpatient hospitalizations,
as well as with the treatment records showing the absence of paranoid
symptoms. (Tr. 26).

At Step 4, the ALJ found that Sherman had no relevant past work.
(Tr 47-48). The ALJ then found at Step 5 that Sherman could perform

jobs that existed in significant numbers in the national economy, such as
agriculture picker, laundry laborer, and kitchen helper. (Tr. 30-31).
Having reached these conclusions, the ALJ determined that Sherman

had not met the demanding showing necessary to sustain this claim for
benefits and denied this claim.
This appeal followed. (Doc. 1). On appeal, Sherman challenges the

adequacy of the ALJ’s decision arguing the decision was not supported by
substantial evidence due to the ALJ’s erroneous treatment of the medical
opinion evidence, as well as his failure to present all of her credibly

14
established limitations in a hypothetical to the Vocational Expert. (Doc.
10 at 4-5).2

As discussed in greater detail below, having considered the
arguments of counsel and carefully reviewed the record, we conclude that
the ALJ’s decision is supported by substantial evidence, and we will

affirm the Commissioner’s denial of this claim.
III. Discussion
A. Substantial Evidence Review – the Role of this Court

This Court’s review of the Commissioner’s decision to deny benefits
is limited to the question of whether the findings of the final decision-
maker are supported by substantial evidence in the record. See 42 U.S.C.

§405(g); , 529 F.3d 198, 200 (3d Cir. 2008);
, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). Substantial
evidence “does not mean a large or considerable amount of evidence, but

rather such relevant evidence as a reasonable mind might accept as

2 Sherman briefly raises an argument related to the ALJ’s consideration
of the Medical Vocational Guidelines (doc. 10 at 5) but fails to develop
that argument in either of her briefs, and so we do not reach
consideration of it here.
15
adequate to support a conclusion.” , 487 U.S. 552,
565 (1988). Substantial evidence means less than a preponderance of the

evidence but more than a mere scintilla. , 402 U.S.
389, 401 (1971).
A single piece of evidence is not substantial evidence if the ALJ

“ignores, or fails to resolve, a conflict created by countervailing evidence.”
, 994 F.2d 1058, 1064 (3d Cir. 1993) (quoting

, 710 F.2d 110, 114 (3d Cir. 1983)) (internal quotations
omitted). However, where there has been an adequately developed
factual record, substantial evidence may be “something less than the

weight of the evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the ALJ’s decision] from
being supported by substantial evidence.”

, 383 U.S. 607, 620 (1966). The court must “scrutinize the record
as a whole” to determine if the decision is supported by substantial
evidence. , 304 F. Supp.2d 623, 627 (M.D. Pa. 2003).

The Supreme Court has explained the limited scope of our review,
noting that “[substantial evidence] means—and means only—‘such

16
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” , 139 S. Ct. 1148, 1154 (2019)

(quoting , 305 U.S. 197, 229 (1938)).
Under this standard, we must look to the existing administrative record
to determine if there is “‘sufficient evidence’ to support the agency’s

factual determinations.” Thus, the question before us is not whether
the claimant is disabled, but rather whether the Commissioner’s finding

that he or she is not disabled is supported by substantial evidence and
was based upon a correct application of the law. , No.
3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has

been held that an ALJ’s errors of law denote a lack of substantial
evidence”) (alterations omitted); , 512 F. Supp. 913,
914 (W.D. Pa. 1981) (“The Secretary’s determination as to the status of a

claim requires the correct application of the law to the facts”);
, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope
of review on legal matters is plenary); , 901 F. Supp. 2d at 536

(“[T]he court has plenary review of all legal issues . . . .”).

17
When conducting this review, we must remain mindful that “we
must not substitute our own judgment for that of the fact finder.”

, 777 F.3d 607, 611 (3d Cir. 2014) (citing ,
399 F.3d 546, 552 (3d Cir. 2005)). Thus, we cannot re-weigh the evidence.
Instead, we must determine whether there is substantial evidence to

support the ALJ’s findings. In doing so, we must also determine whether
the ALJ’s decision meets the burden of articulation necessary to enable

judicial review; that is, the ALJ must articulate the reasons for his
decision. , 220 F.3d 112, 119 (3d
Cir. 2000). This does not require the ALJ to use “magic” words, but rather

the ALJ must discuss the evidence and explain the reasoning behind his
decision with more than just conclusory statements.
, 577 F.3d 500, 504 (3d Cir. 2009) (citations omitted).

Ultimately, the ALJ's decision must be accompanied by “a clear and
satisfactory explication of the basis on which it rests.” ,
642 F.2d 700, 704 (3d Cir. 1981).

18
B. Initial Burdens of Proof, Persuasion, and Articulation for the
ALJ
To receive disability benefits under the Social Security Act, a
claimant must show that he or she is unable to “engage in any substantial

gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than

12 months.” 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A);
20 C.F.R. §§404.1505(a), 416.905(a). This requires a claimant to show a
severe physical or mental impairment that precludes her from engaging

in previous work or “any other substantial gainful work which exists in
the national economy.” 42 U.S.C. §423(d)(2)(A); 42 U.S.C.
§1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits

under Title II of the Social Security Act, a claimant must show that he or
she is under retirement age, contributed to the insurance program, and

became disabled prior to the date on which he or she was last insured. 42
U.S.C. §423(a); 20 C.F.R. §404.131(a).
In making this determination, the ALJ follows a five-step

evaluation. 20 C.F.R. §§404.1520(a), 416.920(a). The ALJ must
19
sequentially determine whether the claimant: (1) is engaged in
substantial gainful activity; (2) has a severe impairment; (3) has a severe

impairment that meets or equals a listed impairment; (4) is able to do his
or her past relevant work; and (5) is able to do any other work,
considering his or her age, education, work experience and residual

functional capacity (“RFC”). 20 C.F.R. §§404.1520(a)(4), 416.920(a)(4).
Between Steps 3 and 4, the ALJ must also determine the claimant’s

RFC. RFC is defined as “that which an individual is still able to do despite
the limitations caused by his or her impairment(s).” , 220 F.3d at
121 (citations omitted); 20 C.F.R. § 404.1545(a)(1). In making

this assessment, the ALJ must consider all the claimant’s medically
determinable impairments, including any non-severe impairments
identified by the ALJ at step two of his or her analysis. 20 C.F.R.

§§404.1545(a)(2), 416.945(a)(2). Our review of the ALJ’s determination of
the plaintiff’s RFC is deferential, and that determination will not be set
aside if it is supported by substantial evidence. 312

F.3d 113, 129 (3d Cir. 2002).

20
The claimant bears the burden at Steps 1 through 4 to show a
medically determinable impairment that prevents him or her from

engaging in any past relevant work. , 994 F.2d at 1064. If met, the
burden then shifts to the Commissioner to show at Step 5 that there are
jobs in significant numbers in the national economy that the claimant

can perform consistent with the claimant’s RFC, age, education, and
work experience. 20 C.F.R. §§404.1512(f), 416.912(f); , 994 F.2d at

1064.
With respect to the RFC determination, courts have followed
different paths when considering the impact of medical opinion evidence

on this determination. While some courts emphasize the necessity of
medical opinion evidence to craft a claimant’s RFC,
962 F. Supp. 2d 761, 778–79 (W.D. Pa. 2013), other

courts have taken the approach that “[t]here is no legal requirement that
a physician have made the particular findings that an ALJ adopts in the
course of determining an RFC.” , 174 F. App’x 6,

11 (3d Cir. 2006). Additionally, in cases that involve no credible medical
opinion evidence, courts have held that “the proposition that an ALJ

21
must always base his RFC on a medical opinion from a physician is
misguided.” , 129 F. Supp. 3d 209, 214–15 (W.D. Pa.

2015).
Given these differing approaches, we must evaluate the factual
context underlying an ALJ’s decision. Cases that emphasize the

importance of medical opinion support for an RFC assessment typically
arise in the factual setting where well-supported medical sources have

found limitations to support a disability claim, but an ALJ has rejected
the medical opinion based upon an assessment of other evidence. ,
962 F. Supp. 2d at 778–79. These cases simply restate the notion that

medical opinions are entitled to careful consideration when making a
disability determination. On the other hand, when no medical opinion
supports a disability finding or when an ALJ relies upon other evidence

to fashion an RFC, courts have routinely sustained the ALJ’s exercise of
independent judgment based upon all the facts and evidence.
, 174 F. App'x 6; 129 F. Supp. 3d at 214–15.

Ultimately, it is our task to determine, in light of the entire record,

22
whether the RFC determination is supported by substantial evidence.
312 F.3d 113.

C. Legal Benchmarks for the ALJ’s Assessment of Medical
Opinions
The plaintiff filed this disability application in June of 2021, after
Social Security Regulations regarding the consideration of medical
opinion evidence were amended. Prior to March of 2017, the regulations

established a hierarchy of medical opinions, deeming treating sources to
be the gold standard. However, in March of 2017, the regulations
governing the treatment of medical opinions were amended. Under the

amended regulations, ALJs are to consider several factors to determine
the persuasiveness of a medical opinion: supportability, consistency,
relationship with the claimant, specialization, and other factors tending

to support or contradict a medical opinion. 20 C.F.R. § 404.1520c(c).
Supportability and consistency are the two most important factors,

and an ALJ must explain how these factors were considered in his or her
written decision. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2);
, 615 F. Supp. 3d 308, 316 (E.D. Pa. 2022). Supportability

means “[t]he more relevant the objective medical evidence and
23
supporting explanations . . . are to support his or her medical opinion(s)
. . . . the more persuasive the medical opinions . . . will be.” 20 C.F.R. §§

404.1520c(c)(1), 416.920c(c)(1). The consistency factor focuses on how
consistent the opinion is “with the evidence from other medical sources
and nonmedical sources.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).

While there is an undeniable medical aspect to the evaluation of
medical opinions, it is well settled that “[t]he ALJ – not treating or

examining physicians or State agency consultants – must make the
ultimate disability and RFC determinations.”
, 667 F.3d 356, 361 (3d Cir. 2011). When confronted with several

medical opinions, the ALJ can choose to credit certain opinions over
others but “cannot reject evidence for no reason or for the wrong reason.”
, 994 F.2d at 1066. Further, the ALJ can credit parts of an opinion

without giving credit to the whole opinion and may formulate a
claimant’s RFC based on different parts of different medical opinions, so
long as the rationale behind the decision is adequately articulated.

, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016). On the other
hand, in cases where no medical opinion credibly supports the claimant’s

24
allegations, “the proposition that an ALJ must always base his RFC on a
medical opinion from a physician is misguided.” , 129 F. Supp.

3d at 214–15.
D. The ALJ’s Decision is Supported by Substantial Evidence.
Our review of the ALJ’s decision denying an application for benefits

is significantly deferential. Our task is simply to determine whether the
ALJ’s decision is supported by substantial evidence in the record; that is
“only— ‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” , 139 S. Ct. at 1154. Judged
against this deferential standard of review, we conclude that substantial
evidence supported the ALJ’s decision in this case.

Here, Sherman challenges the ALJ’s decision, arguing that he
erroneously considered the opinions of Sherman’s treating source, Ms.

Gulius and the state agency consultant, Dr. Calise. As discussed above,
an ALJ is not mandated to accept any medical opinion and is free to
evaluate the evidence on record to reach his own conclusions, including

conclusions supported by no medical opinion on record. , 129
F. Supp. 3d at 214–15. The ALJ has broad discretion to determine which

25
medical opinions are consistent with and supported by the evidence and
credit them accordingly, so long as his decision explains how he reached

that conclusion and discusses the consistency and supportability of the
opinion. 20 C.F.R. § 416.920c(b).
At the outset, we note that the ALJ found that Ms. Gulius was not

an acceptable medical source. (Tr. 22-23). The Rules governing Social
Security disability determinations are clear that “a physical or mental

impairment must be established by objective medical evidence from an
acceptable medical source.” 20 C.F.R. § 416.921. Those same rules define
“acceptable medical source” as someone in one of eight professional

categories , each of which explicitly includes a licensing requirement.
20 C.F.R. § 416.902(a).
Ms. Gulius, who plaintiff initially referred to as “Dr.” and

“neurologist” in her opening brief, is not a doctor. The record evidence
indicates she has a master’s degree, but shows no other relevant
qualifications, certifications, or licenses. As discussed above, an

impairment can only be established by objective medical evidence from
an acceptable medical source, and the ALJ here found that Ms. Gulius

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was “not an acceptable medical source.” (Tr. 22). Ms. Gulius’ opinion is
therefore definitionally precluded from being the source of an

impairment. 20 C.F.R. § 416.921.
In any event, the ALJ did consider Ms. Gulius’ opinion and found it
unpersuasive.3 (Tr. 29). The ALJ noted that this opinion seemed to

heavily rely on Sherman’s self-reported symptoms of paranoia and was
generally inconsistent with the claimant’s mental health treatment

records. ( ). The ALJ further reasoned that while some of the mental
health records indicated racing or ruminating thoughts and an anxious
mood, Sherman’s mental health was “generally within normal limits

[and] generally devoid of referrals for more intensive treatment.” ( ).
The ALJ also noted that this opinion was inconsistent with the treatment
records that generally showed no significant clinical abnormalities. ( ).

3 While Sherman appears to argue that this opinion was a treating source
opinion entitled to “great weight,” we note again that this application was
filed after the Social Security regulations were amended in 2017, and
accordingly, as we have discussed, the ALJ must consider medical
opinions in terms of their persuasiveness, rather than afford a degree of
“weight” to each opinion.
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We conclude that the ALJ’s treatment of Ms. Gulius’ opinion is
supported by substantial evidence. While not an acceptable medical

source, the ALJ considered this opinion and discussed its supportability
and consistency with the record evidence. The ALJ explained his
reasoning for each, finding that the opinion was both unsupported by and

inconsistent with Sherman’s treatment records, and accordingly found it
unpersuasive. This is all that is required—that the ALJ adequately

explain his consideration of the opinion evidence. Thus, we find no error
here.
Sherman also argues that the ALJ improperly rejected the opinion

of Dr. Calise because this opinion was consistent with the medical
records, and further, the ALJ did not discuss the supportability of this
opinion in accordance with the regulations. As to this opinion, the ALJ

found it “generally inconsistent with the evidence of record[,]” noting that
the record contained limited treatment for back pain, mild degenerative
findings on imaging, and generally abnormal findings of generally intact

to mildly reduced strength and sensation. (Tr. 27). The ALJ further
noted that the records indicated Sherman’s “ability to perform a wide

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variety of daily activities.” ( ). However, as Sherman notes, the ALJ’s
treatment of this opinion did not explicitly discuss the “supportability” of

the opinion with the medical record. ( ).
We conclude that the ALJ’s treatment of Dr. Calise’s opinion is
supported by substantial evidence. At the outset, to the extent Sherman

claims Dr. Calise’s opinion was consistent with several specific findings
in the record, this appears to be a request that we reweigh the evidence,

something we may not do. , 667 F.3d at 359. Further, the ALJ
specifically pointed to evidence that was inconsistent with Dr. Calise’s
opinion. Accordingly, we find that the ALJ adequately explained his

reasoning for finding Dr. Calise’s opinion inconsistent with the medical
evidence.
Further, while the ALJ did not specifically discuss the

supportability of Dr. Calise’s opinion, we conclude that any failure to
specifically use the word “supportability” is harmless error, as we find
that the ALJ’s decision is supported by substantial evidence in this

regard. Social Security appeals are subject to harmless error analysis.
, 639 F. App’x 810, 814 (3d Cir. 2016).

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Under the harmless error analysis, a remand is warranted only if the
error “prejudices a party’s ‘substantial rights’”; that is, if the error “likely

affects the outcome of the proceeding, . . .” , 72 F. Supp. 3d
479, 494 (D. Del. 2014).
Here, while the ALJ did not specifically address the supportability

of this opinion, the ALJ’s decision in this regard as a whole comports with
the regulations and is supported by substantial evidence.

, 364 F.3d 501, 505 (3d Cir. 2004) (an ALJ’s decision must be
read as a whole). Discussing the claimant’s alleged physical limitations,
the ALJ stated that “the evidence of record does not support greater

limitations than those provided herein [,]” which speaks indirectly to Dr.
Calise’s opinion recommending such limitations. (Tr. 25). Further, Dr.
Calise cited “pain in back[,]” “pain in hip[,]” and “migraine headaches” as

the specific findings supporting his conclusions. (Tr. 142). In the
decision, the ALJ noted that “imaging of the hips … was negative for
significant degenerative changes.” (Tr. 21). Similarly, the ALJ found

“the record reflects very limited treatment for complaints of chronic back
pain and diagnostic imaging generally describes only mild degenerative

30
changes [,]” and that the record “reflects very limited treatment for
complaints of back pain during the period at issue[.]” (Tr. 25, 27).

Because the decision makes clear that it did not find support for
additional limitations, the failure to discuss Dr. Calise’s opinion explicitly
in terms of its supportability did not affect the outcome of the proceeding.

Therefore, any error is harmless and does not necessitate remand.
, 72 F. Supp. 3d 494.

Sherman’s final argument is that the ALJ erred in failing to
incorporate certain limitations into the hypothetical questions posed to
the VE. (Doc. 10 at 17). But the ALJ did not find those limitations to be

credibly established. (Tr. 27, 29). As such, he was not obligated to
include them in his hypotheticals to the VE.
, 399 F.3d 546, 554 (3d Cir. 2005) (“[L]imitations that are

asserted by the claimant but that lack objective medical support may [be
rejected] . . . . if there is conflicting evidence in the record[.]”). Here, there
is conflicting evidence in the form of the other medical opinions which did

not establish such limitations and which the ALJ found more persuasive,

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and so the ALJ did not err in not submitting these limitations in his
hypotheticals to the VE.

Although there were some abnormal findings during the relevant
period, we are not permitted at this stage to reweigh the evidence,
, 667 F.3d at 359, and instead must simply determine whether

the ALJ’s decision was supported by “substantial evidence.” , 139
S. Ct. at 1154. Given that the ALJ considered all the medical opinion

evidence and adequately explained why he found each one persuasive or
unpersuasive, we find no error with the ALJ’s consideration of the
opinion evidence. Similarly, we find no error with the ALJ’s hypothetical

questions to the VE. Accordingly, under the deferential standard of
review that applies to appeals of Social Security disability
determinations, we conclude that substantial evidence supported the

ALJ’s evaluation of this case, and this decision will be affirmed.

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IV. Conclusion

For the foregoing reasons, the decision of the Commissioner in this
case will be affirmed, and the plaintiff’s appeal denied.
An appropriate order follows.

Daryl F. Bloom
Chief United States Magistrate Judge

Dated: January 16, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10782861. Public record. Not legal advice.