Garcia v. Dudek

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GASPAR LUPIAN GARCIA, : CIVIL NO.: 1:24-cv-00194

:

Plaintiff, : (Magistrate Judge Schwab)

:

v. :

:

:

LELAND DUDEK, 1 :

Acting Commissioner of :

Social Security, :

:

Defendant. :

MEMORANDUM OPINION

I. Introduction.

In this social security action, Plaintiff Gaspar Lupian Garcia seeks judicial

review of the final decision of the Commissioner of Social Security

(“Commissioner”) denying his claims for disability insurance benefits and

supplemental security income under Titles II and XVI of the Social Security Act.

We have jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons

1 Leland Dudek is now the Acting Commissioner of Social Security, and he

is automatically substituted as the defendant in this action. See Fed. R. Civ. P.

25(d) (providing that when a public officer sued in his or her official capacity

ceases to hold office while the action is pending, “[t]he officer’s successor is

automatically substituted as a party”); 42 U.S.C. § 405(g) (“Any action instituted

in accordance with this subsection shall survive notwithstanding any change in the

person occupying the office of Commissioner of Social Security or any vacancy in

such office.”).

set forth below, we will vacate the Commissioner’s decision and remand the case

to the Commissioner for further proceedings.

II. Background and Procedural History.

We refer to the transcript provided by the Commissioner. See docs. 9 -1 to 9-

9.2 On June 19, 2019, Garcia protectively filed3 an application for disability

insurance benefits and an application for supplemental security income, alleging

that he has been disabled since May 14, 2019. See Admin. Tr. at 351–59. After the

Commissioner denied his claims at the initial and reconsideration levels of

administrative review, id. at 72–89, 92–114, Garcia requested an administrative

hearing, id. at 147–48. In January 2023, Garcia—who was represented by

counsel—as well as a vocational expert testified at a hearing before Administrative

Law Judge Richard Guida (the “ALJ”). Id. at 38–65. In January 2023, the ALJ

denied Garcia’s claims for benefits. Id. at 16–36. Garcia appealed the ALJ’s

decision to the Appeals Council, which denied his request for review. Id. at 1–8.

2 Because the facts of this case are well known to the parties, we do not

repeat them here in detail. Instead, we recite only those facts that bear on Garcia’s

claims.

3 “Protective filing is a term for the first time an individual contacts the

Social Security Administration to file a claim for benefits.” Stitzel v. Berryhill, No.

3:16-CV-0391, 2017 WL 5559918, at *1 n.3 (M.D. Pa. Nov. 9, 2017). “A

protective filing date allows an individual to have an earlier application date than

the date the application is actually signed.” Id.

This makes the ALJ’s decision the final decision of the Commissioner subject to

judicial review by this Court.

In February 2024, Garcia, represented by counsel, began this action by filing

a complaint seeking review of the Commissioner’s decision denying his claims.

See Doc. 1. He requests that the court award him benefits or, in the alternative,

remand the case for further proceedings. Id. at 3 (Wherefore Clause). He also

seeks “such relief” as the court deems justified, including attorney’s fees. Id.

The parties consented to proceed before a magistrate judge pursuant to 28

U.S.C. § 636(c), and the case was referred to the undersigned. Doc. 7. The

Commissioner then filed an answer and a certified transcript of the administrative

proceedings. Docs. 8, 9. The parties filed briefs, see docs. 15, 17, 20, and this

matter is ripe for decision.

III. Legal Standards.

A. Substantial Evidence Review—the Role of This Court.

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, “the court has plenary review of all legal issues decided by

the Commissioner.” Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).

But the court’s review of the Commissioner’s factual findings is limited to whether

substantial evidence supports those findings. See 42 U.S.C. § 405(g); Biestek v.

Berryhill, 587 U.S. 97, 99 (2019). “[T]he threshold for such evidentiary

sufficiency is not high.” Biestek, 587 U.S. at 103. Substantial evidence “means—

and means only—‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. of New York v.

N.L.R.B., 305 U.S. 197, 229 (1938)).

Substantial evidence “is less than a preponderance of the evidence but more

than a mere scintilla.” Jesurum v. Sec’y of U.S. Dep’t of Health & Human Servs.,

48 F.3d 114, 117 (3d Cir. 1995). A single piece of evidence is not substantial

evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict

created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).

But in 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] finding

from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,

383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is

supported by substantial evidence the court must scrutinize the record as a whole.”

Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).

The question before this court, therefore, is not whether Garcia is disabled,

but whether substantial evidence supports the Commissioner’s finding that he is

not disabled and whether the Commissioner correctly applied the relevant law.

B. Initial Burdens of Proof, Persuasion, and Articulation.

To receive benefits under Title II or Title XVI of the Social Security Act, a

claimant generally must demonstrate an “inability 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); see also 42 U.S.C. §1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a),

416.905(a). To satisfy this requirement, a claimant must have a severe physical or

mental impairment that makes it impossible to do his or her previous work or any

other substantial gainful work that exists in the national economy. 42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1505(a), 416.905(a).

Further, to receive disability insurance benefits under Title II of the Social

Security Act, a claimant must show that he or she contributed to the insurance

program, is under retirement age, 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).4 Unlike

with disability insurance benefits under Title II of the Social Security Act,

4 “Disability insurance benefits are paid to an individual if that individual is

disabled and ‘insured,’ that is, the individual has worked long enough and paid

social security taxes.” Jury v. Colvin, No. 3:12-CV-2002, 2014 WL 1028439, at *1

n.5 (M.D. Pa. Mar. 14, 2014) (citing 42 U.S.C. §§ 415(a), 416(i)(1)). “The last

date that an individual meets the requirements of being insured is commonly

referred to as the ‘date last insured.’” Id. (citing 42 U.S.C. § 416(i)(2)). Here, the

ALJ determined that Garcia met the insured-status requirements through December

31, 2022. Admin. Tr. at 22, 24.

“[i]nsured status is irrelevant in determining a claimant’s eligibility for

supplemental security income benefits” under Title XVI of the Social Security Act.

Snyder v. Colvin, No. 3:16-CV-01689, 2017 WL 1078330, at *1 (M.D. Pa. Mar.

22, 2017). Supplemental Security Income “is a federal income supplement

program funded by general tax revenues (not social security taxes)” “designed to

help aged, blind or other disabled individuals who have little or no income.” Id.

The ALJ follows a five-step sequential-evaluation process to determine

whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this

process, the ALJ must sequentially determine: (1) whether the claimant is engaged

in substantial gainful activity; (2) whether the claimant has a severe impairment;

(3) whether the claimant’s impairment meets or equals a listed impairment;

(4) whether the claimant is able to do his or her past relevant work; and

(5) whether the claimant 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)(i)–(v), 416.920(a)(4)(i)–(v).

The ALJ must also assess a claimant’s RFC at step four. Hess v. Comm’r of

Soc. Sec., 931 F.3d 198, 198 n.2 (3d Cir. 2019). The RFC is ‘“that which an

individual is still able to do despite the limitations caused by his or her

impairment(s).’” Burnett v Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000)

(quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)); see also 20

C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In making this assessment, the ALJ

considers all the claimant’s medically determinable impairments, including any

non-severe impairment identified by the ALJ at step two of his or her analysis. 20

C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).

“The claimant bears the burden of proof at steps one through four” of the

sequential-evaluation process. Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d

Cir. 2010). But at step five, “the burden of production shifts to the Commissioner,

who must . . . show there are other jobs existing in significant numbers in the

national economy which the claimant can perform, consistent with her medical

impairments, age, education, past work experience, and residual functional

capacity.” Fargnoli v. Massanari, 247 F.3d 34, 39 (3d Cir. 2001).

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significantly, the ALJ must provide “a clear and satisfactory

explication of the basis on which” his or her decision rests. Cotter v. Harris, 642

F.2d 700, 704 (3d Cir. 1981). “The ALJ must indicate in his decision which

evidence he has rejected and which he is relying on as the basis for his finding.”

Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). The

“ALJ may not reject pertinent or probative evidence without explanation.” Johnson

v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, ‘“the

reviewing court cannot tell if significant probative evidence was not credited or

simply ignored.’” Burnett, 220 F.3d at 121 (quoting Cotter, 642 F.2d at 705).

IV. The ALJ’s Decision.

On January 31, 2023, the ALJ denied Garcia’s claims for benefits. Admin.

Tr. at 16–36. He proceeded through the five-step sequential-evaluation process.

A. Step One.

At step one of the sequential-evaluation process, the ALJ found that Garcia

had not engaged in substantial gainful activity since his alleged onset date of May

14, 2019, through that date of the ALJ’s decision. Id. at 24, 30.

B. Step Two.

At step two of the sequential-evaluation process, the ALJ found that Garcia

had the following severe impairments: degenerative disc disease and obesity. Id. at

24. Without naming them, the ALJ also found that all other medically

determinable impairments were nonsevere. Id. at 25. But he noted that he

“considered all impairments, including those found ‘non-severe,’ in formulating

[Garcia]’s residual functional capacity.” Id.

C. Step Three.

At step three of the sequential-evaluation process, the ALJ found that Garcia

did not have an impairment or combination of impairments that met or medically

equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at

25–26. Specifically, the ALJ considered Listings 1.15 (Disorders of the skeletal

spine resulting in compromise of a nerve root(s)) and 1.16 (Lumbar spinal stenosis

resulting in compromise of the cauda equina). Id.

D. The RFC.

The ALJ then determined that Garcia had the RFC to do light work5 with

some limitations. Id. at 26. He concluded that Garcia is “limited to occasional

postural movements” and he “must avoid concentrated exposure to vibration,

dangerous machinery and unprotected heights.” Id.

5 See 20 C.F.R. § 404.1567(b) (“Light work involves lifting no more than 20

pounds at a time with frequent lifting or carrying of objects weighing up to 10

pounds. Even though the weight lifted may be very little, a job is in this category

when it requires a good deal of walking or standing, or when it involves sitting

most of the time with some pushing and pulling of arm or leg controls. To be

considered capable of performing a full or wide range of light work, you must have

the ability to do substantially all of these activities. If someone can do light work,

we determine that he or she can also do sedentary work, unless there are additional

limiting factors such as loss of fine dexterity or inability to sit for long periods of

time.”).

In making this RFC assessment, the ALJ considered Garcia’s contentions.

He noted that Garcia “alleges disability due to a back injury (herniated disc).” Id.6

And Garcia “stated he has difficulty lifting, squatting, bending, standing, reaching,

walking, sitting, kneeling, climbing stairs, and completing tasks.” Id. The ALJ

acknowledged that Garcia “stated that [his] pain is constant but becomes worse

whenever he performs these activities.” Id. at 26–27. Garcia “alleges he is unable

to work because he has pain from his lower back up to his shoulders occasional

pain down his right leg[,]” “his pain is aggravated by bending and sitting, standing

and walking for prolonged periods[,]” and “[t]here are times when his right leg

feels numb.” Id. at 27.

The ALJ also considered Garcia’s testimony at the hearing. He recounted

that Garcia testified “that he experiences pain in the low back, shoulders, right leg

and testicle”; that “he uses a cane at times because of his right leg numbness and

weakness”; and that “he has tried physical therapy, injections and nerve blocks, but

nothing relieves his pain.” Id. That ALJ also observed that Garcia testified that “he

can sit up to 30 minutes at one time”; that “he can walk for a maximum of one

hour at a time”; that “he drives his child to school, which takes approximately 15-

20 minutes”; and that “[h]e can prepare simple meals and go grocery shopping

6 For readability purposes, here—and elsewhere—when citing or quoting the

ALJ’s decision, we omit the ALJ’s citations to the record.

with his wife” Id. Garcia further testified that “[h]e takes medications for his pain,

which cause sleepiness and gastrointestinal problems.” Id.

The ALJ concluded that although Garcia’s impairments “could reasonably

be expected to cause the alleged symptoms[,]” his “statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely

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

reasons explained in this decision.” Id.

In making the RFC assessment, the ALJ also considered Garcia’s medical

records and treatment notes. Id. at 27–28. He concluded that Garcia’s medical

records corroborate his “reports of paralumbar right buttock pain associated with

degenerative disc disease and obesity[,] but “the longitudinal evidence suggests

that [Garcia] can perform a reduced range of light work.” Id. at 27. In support of

that conclusion, the ALJ noted that the record “shows diagnoses of

postlaminectomy syndrome, lumbar stenosis and lumbar radiculopathy related to

these complaints.” Id. And as a result of work-related injury, in 2001, Garcia had a

lumbar fusion. Id. “Postoperatively, [Garcia] reported intermittent pain that

progressively worsened.” Id. And although “[h]e treated with pain management,

utilized physical therapy and received transforaminal epidural steroid injections[,]

[Garcia] reported continued pain despite treatment that is worse with prolonged

sitting and standing and sometimes walking and is rated a 6 out of 10.” Id. But, the

ALJ noted, Garcia’s “pain improved with resting and bending forward[,]” and

[d]espite his testimony that nothing relieves his pain, [Garcia] reported good

(although temporary) relief with nerve blocks, injections and Diclofenac as well as

improvement withTizanidine.” Id. The ALJ concluded that “[t]his evidence is

inconsistent with [Garcia]’s statements.” Id.

The ALJ also noted that Garcia “reported some bilateral upper extremity

paresthesia while laying down at night and that occurred occasionally during the

day, but this was relieved by massage.” Id. The ALJ then summarized the findings

from MRIs and x-rays:

A lumbar spine MRI dated June 2019 showed evidence of prior

surgery at L5-S1 as well as posterior disc bulging at L3-L5 that

compresses the ventral face of the most prominent dura and

slight right predominance in L4-L5 without contact of

corresponding roots, canal narrowing at L4-S1; facet

hypertrophy and thickening at L3-S1 and dehydration of lumbar

discs at L3-L5.” An x-ray of the cervical spine in July 2020

revealed only mild cervical spondylosis with neural foraminal

narrowing at C4-5 and normal thoracic spine exam. An MRI of

the lumbar spine dated April 22, 2021, showed a small disc

protrusion at L4-5, moderate facet arthropathy bilaterally, and

mild neural foraminal narrowing.

Id. at 27–28. And he noted that “[t]here is no evidence of nerve root compression,

bladder or bowel involvement, intractable pain, or gait instability related to

[Garcia]’s pain.” Id. at 28.

The ALJ then addressed Garcia’s use of a cane. Id. Noting that Garcia

“generally presents to his medical appointments with a steady gait and without

assistive devices,” and that “his treatment records specifically refute that [Garcia]

has unsteadiness of gait or that he requires an assistive device for ambulation,” the

ALJ found that Garcia contention that he uses a cane was not persuasive, and he

found the use of a cane is not medically necessary. Id. The ALJ also observed that

although “[o]n physical examination, [Garcia] has shown abnormality at times,

such as a body mass index that exceeds 30 and tenderness,” “he typically shows

good range of motion, normal gait with no use of assistive devices, no edema, no

joint instability, intact neurologic examination, normal sensation, intact reflexes,

and good strength.” Id. And he concluded that “[t]here is no longitudinal evidence

of gross instability, markedly diminished range of motion, absent reflexes, loss of

sensation, muscle atrophy or motor deficits.” Id. And “[d]espite [Garcia]’s pain,

[Garcia] is ‘not sedentary’ per his medical providers, he is able to perform his

activities of daily living and he is able to drive.” Id. According to the ALJ, “[t]his

suggests that [Garcia]’s statements about the intensity, persistence, and limiting

effects of his symptoms are inconsistent with the evidence as a whole.” Id.

The ALJ then summarized a consultative medication examination with

Nurse Hammon:

In September 2019, [Garcia] presented to Karena A. Hammon,

NP, for a consultative medical evaluation. At the interview,

[Garcia] relayed he underwent a prior fusion in 2001 and

continues, at times, to walk with a cane. However, he appeared

at the examination without any assistive devices. [Garcia]

noted he was currently not taking any medication except for

over-the-counter Aleve. On physical examination, Nurse

Hammon observed [Garcia] in no acute distress, with normal

gait and stance, full squat, negative straight leg raise, no evident

joint deformity, no sensory deficit, intact upper and lower

extremity strength, intact hand and finger dexterity and

strength, and normal range of motion throughout.

Id.

In making his RFC assessment, the ALJ also considered the medical opinion

evidence and prior administrative medical findings in the record. Id. at 28–29. The

ALJ first noted that Nurse Hammon opined that Garcia “could lift 50 pounds

occasionally and 20 pounds frequently; carry 50 pounds occasionally and 10

pounds frequently; sit 5 hours, stand 4 hours, and walk 3 hours during an 8-hour

workday; would not medically require the use of an assistive ambulatory aide;

occasionally stoop and crouch; frequently climb, balance, kneel, and crawl; and

tolerate frequent exposure to unprotected heights, moving mechanical parts, and

operation of a motor vehicle.” Id. at 28. The ALJ found Nurse Hammon’s

opinions partially persuasive. Id. More specifically, he found her “sit, stand and

walking limitations are not persuasive, as they are not supported by the normal

ranges of motion, gait and strength noted on examination.” Id. According to the

ALJ, Nurse Hammond’s “lifting and carrying limitations also appear to

overestimate the claimant’s abilities when compared to the ongoing back pain

reported; however, the finding that the claimant would have postural limitation[s]

is consistent with the claimant’s history of pain and obesity.” Id. And her “finding

that he does not require an assistive device is consistent with his treatment records

documenting the same.” Id. at 28–29.

The ALJ also considered the October 2019, and March 2020, opinions from

the State agency medical consultants, who opined that Garcia could perform a

range of light work with some postural and environmental limitations. Id. at 29.

He found these opinions persuasive. Id. He reasoned that “[t]he consultants

provided ample supporting evidence and explanation for their findings, including

[Garcia]’s history of surgery, his clinical presentation and the notes of normal gait

without unsteadiness.” Id. He also found that the consultant’s opinions regarding

“the occasional postural limitations and environmental restrictions . . . consistent

with [Garcia]’s history of back and leg pain and his history of obesity, all of which

could result in mobility issues.” And he found the “[t]hese findings are also

consistent with the treatment records showing that [Garcia] is not sedentary and

can perform his activities of daily living.” Id.

In sum, the ALJ asserted that his conclusion that Garcia has the RFC to

perform light work with limitations “is supported by the prior administrative

findings, the opinion of Nurse Hammon in part, the findings via MRI, [Garcia]’s

response to medical treatment, and the largely intact findings on physical

examination.” Id.

E. Step Four.

At step four of the sequential-evaluation process, the ALJ found that Garcia

could not perform his past relevant work as a harvest worker and tree pruner. Id. at

29.

F. Step Five.

At step five of the sequential-evaluation process, considering Garcia’s age,

education, work experience, and RFC, as well as the testimony of a vocational

expert, the ALJ found that there were jobs—such as housekeeper, laundry worker,

and hand packer—that exist in significant numbers in the national economy that

Garcia could perform. Id. at 30.

In sum, the ALJ concluded that Garcia was not disabled from May 14, 2019

(which is the alleged onset date), through that date of the ALJ’s decision on

January 31, 2023. Id. Thus, he denied Garcia’s claims for benefits. Id. at 31.

V. Discussion.

Garcia presents numerous claims. We begin by addressing his claim that

substantial evidence does not support the ALJ’s RFC determination because he

relied on outdated medical opinions. Because that claim involves the ALJ’s RFC

determination and the ALJ’s analysis of opinion evidence, before we address

Garcia’s specific arguments, we set forth the standards regarding the RFC

assessment in general as well as a brief overview of the regulations regarding

opinion evidence.

A. The RFC.

“The ALJ—not treating or examining physicians or State agency

consultants—must make the ultimate disability and RFC determinations.”

Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). The RFC is

‘“that which an individual is still able to do despite the limitations caused by his or

her impairment(s).’” Burnett, 220 F.3d at 121 (quoting Hartranft, 181 F.3d at 359

n.1). In assessing a claimant’s RFC, the ALJ must consider all the evidence of

record. Burnett, 220 F.3d at 121. “When a conflict in the evidence exists, the ALJ

may choose whom to credit but ‘cannot reject evidence for no reason or for the

wrong reason.’” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting

Mason, 994 F.2d at 1066). The court’s “review of the ALJ’s assessment of the

plaintiff’s RFC is deferential, and that RFC assessment will not be set aside if it is

supported by substantial evidence.” Wilder v. Kijakazi, 1:20-CV-492, 2021 WL

4145056, at *6 (M.D. Pa. Sept. 9, 2021); see also Burns v. Barnhart, 312 F.3d 113,

129 (3d Cir. 2002) (“We examine the ALJ’s conclusions as to [the claimant’s]

residual functional capacity with the deference required of the substantial evidence

standard of review.”).

Further, “[s]urveying the medical evidence to craft an RFC is part of the

ALJ’s duties.” Titterington v. Barnhart, 174 F. App’x 6, 11 (3d Cir. 2006). And

“[i]n evaluating medical reports, the ALJ is free to choose the medical opinion of

one doctor over that of another.” Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 505

(3d Cir. 2009). In fact, in evaluating the medical opinion evidence of record, “the

ALJ is not only entitled but required to choose between” conflicting medical

opinions. Cotter, 642 F.2d at 705.

In setting the RFC, the ALJ must also clearly articulate his or her reasoning.

In other words, the ALJ must “set forth the reasons for his decision” to allow for

meaningful judicial review. Burnett, 220 F.3d at 119 (citing Cotter, 642 F.2d at

704–05). Although an ALJ need not “use particular language or adhere to a

particular format in conducting his analysis,” the ALJ must ensure “sufficient

development of the record and explanation of findings to permit meaningful

review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). The ALJ’s decision

must set out “a clear and satisfactory explication of the basis on which it rests.”

Cotter, 642 F.2d at 704. If an ALJ “has not sufficiently explained” how he or she

considered all the evidence “‘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.’” Dantzler v.

Saul, No. 3:16-CV-2107, 2019 WL 5569466, at *1 (M.D. Pa. Oct. 28, 2019)

(quoting Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979)).

B. Opinion Evidence.

The regulations regarding the evaluation of opinion evidence are different

for claims filed before March 27, 2017 (“old regulations”), on the one hand, and

for claims, like Garcia’s, filed on or after March 27, 2017 (“new regulations”), on

the other hand. The new regulations applicable here have been described as a

“paradigm shift” in the way medical opinions are evaluated. Mercado v. Kijakazi,

629 F. Supp. 3d 260, 279 (M.D. Pa. 2022). Under the old regulations, “ALJs were

required to follow regulations which defined medical opinions narrowly and

created a hierarchy of medical source opinions with treating sources at the apex of

this hierarchy.” Id. at 280. But under the new regulations, “[t]he range of opinions

that ALJs were enjoined to consider were broadened substantially, and the

approach to evaluating opinions was changed from a hierarchical form of review to

a more holistic analysis.” Id.

Further, under the old regulations, the ALJ assigns the weight he or she

gives to a medical opinion. 20 C.F.R. §§ 404.1527(c), 416.967(c). Under the new

regulations, however, the ALJ evaluates the persuasiveness of medical opinions

and prior administrative medical findings using the following factors:

(1) supportability, (2) consistency, (3) relationship with claimant,

(4) specialization, and (5) other factors. 20 C.F.R. §§ 404.1520c(c), 416.920c(c).

The most important factors are supportability and consistency. 20 C.F.R.

§§ 404.1520c(a), 416.920c(a). The ALJ must explain how he or she “considered

the supportability and consistency factors for a medical source’s medial opinions

or prior administrative medical findings in” his or her determination or decision. 20

C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ may, but is not required to,

explain how he or she considered the remaining three factors in determining the

persuasiveness of a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2),

416.920c(b)(2). But if there are two equally persuasive medical opinions about the

same issue that are not exactly the same, then the ALJ must explain how he or she

considered the other factors. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3).

Supportability and consistency are defined in 20 C.F.R. §§ 404.1520c(c),

416.920c(c). As the regulations provide, supportability means: “The more relevant

the objective medical evidence and supporting explanations presented by a medical

source are to support his or her medical opinion(s) or prior administrative medical

finding(s), the more persuasive the medical opinions or prior administrative

medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1).

“Simply put, supportability is an inquiry geared toward assessing how well a

medical source supported and explained their opinion(s).” Acosta Cuevas v.

Commissioner of Social Security, No. 20-CV-0502, 2021 WL 363682, at *10

(S.D.N.Y. Jan. 29, 2021), adopting report and recommendation, 2022 WL 717612,

at *1 (S.D.N.Y. Mar. 10, 2022). On the other hand, consistency means: “The more

consistent a medical opinion(s) or prior administrative medical finding(s) is with

the evidence from other medical sources and nonmedical sources in the claim, the

more persuasive the medical opinion(s) or prior administrative medical finding(s)

will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). The consistency factor

focuses on “how well a medical source is supported, or not supported, by the entire

record.” Acosta Cuevas, 2021 WL 363682, at *10.

C. The ALJ’s RFC assessment is not supported by substantial evidence.

Garcia contends that substantial evidence does not support the ALJ’s RFC

determination because he relied on outdated medical opinions. Nurse Hammon

rendered her opinions in September 2019. See Admin. Tr. at 477–89. And a state

agency medical consultant rendered his opinions on initial review of Garcia’s

claims in October 2019, and another state agency medical consultant rendered his

opinions on reconsideration of Garcia’s claims in March 2020. See id. at 72–89,

92–114. According to Garcia, significant evidence from after these medical

professionals gave their opinions but before the ALJ issued his decision shows that

his conditioned worsened, but the medical professionals did not have the

opportunity to review that evidence before giving their opinions. Doc. 15 at 12–15.

Garcia summarizes the evidence at issue:

. . . In March 2020, Mr. Garcia received an interlaminar and

transforaminal epidural injection. July 2020 cervical x-ray

revealed cervical spondylosis with neural foraminal narrowing

at C4-C5. In July 2020, Mr. Garcia affirmed right paralumbar

right buttock pain, and right paracervical and right posterior

shoulder girdle pain. He indicated that he slept with his legs

elevated. On physical examination, he exhibited tenderness on

palpation of his right gluteal musculature, tender points within

his mid and lower trapezius on the right side and muscles of his

right posterior shoulder girdle region, and positive Maneuvers-

Patrick’s test. He was diagnosed with sacroiliac joint

dysfunction of the right side, discogenic thoracic pain,

cervicalgia and status post lumbar fusion. Right sacroiliac joint

injection was ordered. Later that month, Mr. Garcia underwent

steroid injection of the right sacroiliac joint. In April 2021, Mr.

Garcia reported that the injections did not provide significant

pain relief. April 2021 lumbar MRI showed central and right

paracentral disc protrusion at L4-5, moderate facet arthropathy

bilaterally with no central canal stenosis and mild neural

foraminal narrowing bilaterally, mild bulging at L3-4,

nonspecific enhancement surrounding the facets and pedicle

screws at L4-5 and L5-S1 post gadolinium injection. In August

2021, Mr. Garcia underwent right greater trochanteric bursa

injection and right SI joint injection. In October 2021, Mr.

Garcia underwent right L3, L4 medial branch and L5 dorsal

ramus nerve blocks. In November 2021, Mr. Garcia reported

sharp and shooting low back pain which radiated down the

posterior aspect of the right leg down to the calf. He also

reported numbness in his bilateral thighs. The pain progressed

in severity and disrupted his sleep and was aggravated by

prolonged standing or sitting. A. Hsu, M.D. diagnosed facet

arthropathy and recommended repeat L3, L4 medial branch and

L5 dorsal ramus block. In January 2022 and March 2022, Mr.

Garcia underwent right L3 and L4 medial branch and L5 dorsal

ramus blocks. In March 2022, Mr. Garcia underwent

radiofrequency ablation of the right L3 and L4 medial branches

and L5. In August 2022, Mr. Garcia reported that the medial

branch block and radiofrequency ablation provided relief from

back pain for only 2 days. He affirmed low back pain which

radiated down both legs, worse on the right. He exhibited

tenderness to palpation over the spinous processes and bilateral

paraspinal muscles and focal tenderness to palpation over the

coccyx. He was diagnosed with chronic bilateral low back pain

with bilateral sciatica and trigger point injections and coccygeal

nerve block were ordered. In September 2022, Mr. Garcia

underwent trigger point injections in lumbar paraspinal muscles

and coccygeal nerve block. In October 2022, Mr. Garcia

reported that the injections and nerve blocks only provided

relief for about 2 weeks and his pain returned thereafter.

Id. at 13–14 (internal citations to the record omitted). Although this evidence was

before the ALJ when he rendered his decision in January 2023, because it was not

before the medical professionals who rendered their opinions years earlier, Garcia

contends that those opinions are not substantial evidence supporting the ALJ’s

RFC determination.

At the outset, we note that opinions of state agency consultants “merit

significant consideration.” Chandler v. Commissioner of Social Security, 667 F.3d

356, 361 (3d Cir. 2011). And “because state agency review precedes ALJ review,

there is always some time lapse between the consultant’s report and the ALJ

hearing and decision.” Id. “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.” Id. Further, the mere fact that some additional medical evidence is received

after the agency consultant’s report does not necessarily mean that the ALJ may

not rely on the agency consultant’s opinions. Id.

Nevertheless, “[a]s a matter of law and common sense, material medical

developments which take place after a state agency or consulting expert’s review

of a claimant’s file frequently can undermine the confidence which can be placed

in this non-treating and non-examining source opinion.” Dieter v. Saul, No. 1:19-

CV-1081, 2020 WL 2839087, at *8 (M.D. Pa. June 1, 2020). And when the

additional medical records show that the claimant’s condition and functional

capacity appear to have deteriorated in the period between the consultants’

opinions and the ALJ’s decision, courts have held that the medical opinions do not

constitute substantial evidence and have vacated the Commissioner’s decision and

remanded for further proceedings. See e.g. Tirado-Negron v. O’Malley, No. 3:22-

CV-01994, 2024 WL 1356706, at *5 (M.D. Pa. Mar. 29, 2024) (vacating and

remanding after concluding that “[b]ased on this record, in which Tirado-Negron’s

physical condition and functional capacity appears to have deteriorated in the

intervening period of more than eighteen months, the state agency medical

consultants’ opinions simply do not constitute substantial evidence of Tirado-

Negron’s RFC at the time of the ALJ’s October 2021 decision, as they were not

based on his full medical treatment record”); Pritchard v. Kijakazi, No. 3:20-CV-

01874, 2022 WL 4647409, at *6 (M.D. Pa. Sept. 30, 2022) (“An RFC

determination is not supported by substantial evidence where an ALJ relied solely

upon medical opinions that predate the deterioration of a plaintiff’s impairments if

medical evidence received into the record suggests such post-opinion

deterioration.”); McCoy v. Colvin, No. 3:15-CV-00629, 2016 WL 3031826, at *7

(M.D. Pa. May 25, 2016) (vacating and remanding after concluding that “[b]ased

on this record, in which McCoy’s mental status appears to have deteriorated

significantly in the intervening period, Dr. Rohar’s April 2013 mental RFC

assessment simply does not constitute substantial evidence of McCoy's mental

RFC at the time of his May 2014 hearing and the ALJ’s September 2014 decision,

as they were not based on his full mental health treatment record”); Kroh v. Colvin,

No. 3:13-CV-01533, 2014 WL 4384675, at *22 (M.D. Pa. Sept. 4, 2014) (“Based

on this record, in which Ms. Kroh’s mental status appears to have deteriorated

significantly in the intervening period, Dr. Sadar’s December 2010 RFC

assessment simply does not constitute substantial evidence of Ms. Kroh’s RFC at

the time of her hearing and the ALJ’s decision in January 2012, as it was not based

on her full medical record.”).

Here, the ALJ relied on the medical opinions in the record when determining

Garcia’s RFC. But given the significant amount of evidence—including multiple

diagnostic studies, diagnoses, and treatments—that was before the ALJ but not the

medical professionals who opined on Garcia’s limitations, we cannot reliably

conclude that the medical professional’s opinions would have been the same had

they had this additional evidence. And although the ALJ did discuss some of the

new medical evidence, he did not have the benefit of a medical opinion on such.

In sum, given the volume of new records, the kind of records at issue, and that the

new records arguably show a decline in Garcia’s condition, we cannot say that the

ALJ’s RFC assessment, which relied on medical opinions issued before the new

medical evidence, is supported by substantial evidence. And since we cannot

conclude that the ALF’s RFC assessment is supported by substantial evidence, we

will vacate the Commissioner’s decision.

D. Other Claims.

Because we conclude that the Commissioner’s decision must be vacated

because there is not substantial evidence to support the ALJ’s RFC assessment, we

will not address Garcia’s remaining claims of error. “Plaintiff’s additional claims

of error may be remedied through the case’s treatment on remand.” Brown v. Saul,

No. CV 3:18-1619, 2020 WL 6731732, at *7 (M.D. Pa. Oct. 23, 2020), report and

recommendation adopted, 2020 WL 6729164, at *1 (M.D. Pa. Nov. 16, 2020). “A

remand may produce different results on these claims, making discussion of them

moot.” Id.

E. Remand is the appropriate remedy.

Because the ALJ’s decision is not support by substantial evidence, the

question then is whether the court should remand the case to the Commissioner for

further proceedings or award benefits to Garcia. We conclude that remand is the

appropriate remedy.

Under sentence four of 42 U.S.C. § 405(g), the court has the “power to enter,

upon the pleadings and transcript of the record, a judgment affirming, modifying,

or reversing the decision of the Commissioner of Social Security, with or without

remanding the cause for a rehearing.” Thus, although a remand is often the

appropriate remedy, the court may also enter an order awarding the claimant

benefits. See Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 358 (3d Cir. 2008)

(remanding the case to the district court with directions to enter an order awarding

the payment of benefits); Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000)

(same); Podedworny v. Harris, 745 F.2d 210, 223 (3d Cir. 1984) (same). But an

“award [of] benefits should be made only when the administrative record of the

case has been fully developed and when substantial evidence on the record as a

whole indicates that the claimant is disabled and entitled to benefits.” Podedworny,

745 F.2d at 221–22. Whether there has been excessive delay and/or prior remands

also bears on whether to award benefits or to remand for further proceedings. Diaz

v. Berryhill, 388 F. Supp. 3d 382, 391 (M.D. Pa. 2019). “Thus, in practice any

decision to award benefits in lieu of ordering a remand for further agency

consideration entails the weighing of two factors: First, whether there has been an

excessive delay in the litigation of the claim which is not attributable to the

claimant; and second, whether the administrative record of the case has been fully

developed and substantial evidence on the record as a whole indicates that the

claimant is disabled and entitled to benefits.” Id.

Here, there has not been excessive delay in the litigation of Garcia’s claims,

and we cannot say that substantial evidence on the record as a whole shows that

Garcia is disabled and entitled to benefits. Thus, we will remand the case to the

Commissioner for further proceedings.

VI. Conclusion.

For the foregoing reasons, we will vacate the decision of the Commissioner

and remand the case to the Commissioner for further proceedings pursuant to

sentence four of 42 U.S.C. § 405(g). An appropriate order follows.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge