Opinion

Kishpaugh v. Kijakazi

Court: District Court, M.D. Pennsylvania
Filed: Apr 10, 2025
Cited by: 0 cases
Authority: More cited than 34.8%

agreeing that “SSR 96–2p does not prohibit the ALJ from crediting some parts of a treating source's opinion and rejecting other portions”

How later courts described this case

agreeing that “SSR 96–2p does not prohibit the ALJ from crediting some parts of a treating source's opinion and rejecting other portions”
comparing the substantial-evidence standard to the deferential clearly- erroneous standard
“[T]he court has plenary review of all legal issues . . . .”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KRISTEN KISHPAUGH, : Civil No. 3:23-CV-00926

Plaintiff, :

v. :

LELAND DUDEK,1 :

Acting Commissioner of Social Security : (Magistrate Judge Carlson)

Defendant. :

MEMORANDUM OPINION

I. Introduction

For Administrative Law Judges (ALJs) a key element in any Social Security

disability decision is ascertaining the claimant’s residual functional capacity or RFC;

that is, the most that the claimant can do despite his or her impairments. This

determination entails an assessment of the claimant’s severe and non-severe

impairments, and often involves an evaluation of the persuasive power of various

medical opinions. Frequently these issues are interrelated. Thus, the decision

1Leland Dudek became the Acting Commissioner of Social Security on February 16,

2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Leland Dudek

should be substituted for the previously named defendant in this suit. No further

action need be taken to continue this suit by reason of the last sentence of section

205(g) of the Social Security Act, 42 U.S.C. § 405(g).

regarding a claimant’s RFC often depends upon the ALJ’s judgment concerning the

persuasive power of various medical opinions. An ALJ undertakes these tasks

guided by regulations which call upon the ALJ to assess each medical opinion in

terms of its consistency and supportability.

Once the ALJ has made this decision, on appeal it is the Court’s responsibility

to decide whether substantial evidence, fully articulated by the ALJ, supports the

disability determination. This “substantial evidence” test is a highly deferential

standard of review. As the Supreme Court has explained:

The phrase “substantial evidence” is a “term of art” used throughout

administrative law to describe how courts are to review agency

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––,

135 S. Ct. 808, 815, 190 L.Ed.2d 679 (2015). 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. Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, 59 S. Ct. 206, 83 L.Ed. 126 (1938) (emphasis

deleted). 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.” Ibid.; see,

e.g., Perales, 402 U.S. at 401, 91 S. Ct. 1420 (internal quotation marks

omitted). It means—and means only—“such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Consolidated Edison, 305 U.S. at 229, 59 S. Ct. 206. See Dickinson v.

Zurko, 527 U.S. 150, 153, 119 S. Ct. 1816, 144 L.Ed.2d 143 (1999)

(comparing the substantial-evidence standard to the deferential clearly-

erroneous standard).

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Under this standard of review,

we are obliged to affirm the decision of the ALJ once we find that it is “supported

by substantial evidence, ‘even [where] this court acting de novo might have reached

a different conclusion.’” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190–91

(3d Cir. 1986) (quoting Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir.

1986)).

In the instant case, we are called upon to decide whether substantial evidence,

which was adequately articulated by the ALJ, supported the ALJ’s evaluation of

Kristen Kishpaugh’s severe and non-severe impairments and the related question of

whether the ALJ erred in finding the opinion of Kishpaugh’s counselor, Jeanne Fink,

unpersuasive. Mindful of the fact that substantial evidence “means only—‘such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion,’” Biestek, 139 S. Ct. at 1154, we conclude that substantial evidence

supported the ALJ’s mental RFC determination and medical opinion findings in this

case. Therefore, for the reasons set forth below, we will affirm the decision of the

Commissioner denying this claim.

II. Statement of Facts and of the Case

A. Background

The administrative record of Kishpaugh’s disability application reveals the

following essential facts: On July 8, 2019, Kishpaugh applied for disability

insurance benefits pursuant to Title II of the Social Security Act, alleging an onset

of disability beginning June 2, 2018. (Tr. 15). The plaintiff later amended her onset

date to July 9, 2019. (Tr. 17). Kishpaugh’s application alleged that she was

completely disabled due to a number of physical and emotional impairments,

including adjustment disorder with mixed anxiety and depression; attention deficit

hyperactivity disorder; dissociation; and post-traumatic stress disorder. (Tr. 18). She

also described some lesser physical impairments in her disability application,

including hyperlipidemia, constipation, skin lesion, and migraines. (Id.) Kishpaugh

was born on June 14, 1965, and was 53 years old on the alleged disability onset date,

which is defined as an individual closely approaching advanced age under the

Commissioner’s regulations. (Tr. 24). She had a high school education and prior

employment as a receptionist and an exotic dancer prior to the alleged onset of

disability. (Tr. 23-24). At the time of these disability proceedings, Kishpaugh was

studying to become a real estate agent and was reporting that she was doing well in

these studies. (Tr. 1111).

B. Kishpaugh’s Clinical History

At the time of the alleged onset of her disability, Kishpaugh was receiving

treatment for her various medical and emotional conditions from two primary

sources: the Penn State Health Milton Hershey Medical Center and Jeanne Fisk, a

Licensed Professional Counselor. The treatment records of these two sources

documented some degree of emotional impairment on Kishpaugh’s part, but in the

main described the severity of these impairments in terms which were not wholly

disabling.

For example, the records of Penn State Health, which treated Kishpaugh from

2018 through the Fall of 2021, consistently stated that her mood was euthymic, her

memory was intact, her speech was fluent and appropriate, her thought content was

normal, and her thought process was linear and goal oriented.2 Moreover, many of

these treatment notes indicated that Kishpaugh’s condition was stable and did not

significantly impair her daily functioning. For example, an August 5, 2019,

treatment note indicated that Kishpaugh denied significant depression and denied

difficulty completing tests due to her anxiety. (Tr. 565). Likewise, treatment records

from March 8, 2021, stated that: “Overall she is doing great,” and indicated that she

2 See Tr. 306, 318, 325, 327, 537, 566, 591, 743, 902, 912, 952, 1034.

displayed an improved mood and great outlook. (Tr. 741). At that time, it was

reported that Kishpaugh’s anxiety disorder was well controlled. (Id.)

The longitudinal treatment records of Kishpaugh’s counselor, Jeanne Fisk,

also described her emotional impairments in terms which were not wholly disabling.

Fisk treated Kishpaugh from August 2018 through January 2021. (Tr. 597-732,

1055-1134). Over this extended period, Fisk’s treatment notes consistently described

Kishpaugh as interactive, with an appropriate affect and an intact functional status.

(Id.) These treatment records documented some fluctuation in Kishpaugh’s mood

and orientation over time, but the treatment notes often described her mood as

euthymic or stable, or indicated that she was fully oriented. Moreover, in those

instances where the notes did not reflect these completely benign observations the

most common observation was that Kishpaugh was oriented but anxious.3 Further,

Fisk’s notes indicated that, in July of 2021, Kishpaugh was reporting perfect grades

in her real estate examinations and stated that she was able to vacation at Hershey

Park with family. (Tr. 1111).

These clinical notations were bolstered by the findings of a consultative

examining source, Dr. John Miller, who conducted an examination of Kishpaugh on

3 See Tr. 597, 601, 603, 604, 611, 621, 633, 639, 647, 655, 663, 673, 679-716, 722,

1080-1134.

March 24, 2021, as part of the disability determination process. (Tr. 751-56). At that

time Dr. Miller described Kishpaugh as cooperative with adequate social skills. (Tr.

753). Her posture and mood behavior were normal, and her eye contact was

adequate. (Id.) The doctor then assessed that her speech was fluent and clear; her

sensorium was clear, and her attention, concentration, and orientation were intact.

(Tr. 754). While Kishpaugh’s mood and affect were anxious, Dr. Miller found that

her judgment was good, her insight was fair, and she displayed average cognitive

functioning. (Id.) According to the doctor, Kishpaugh also reported a wide array of

activities of daily living including cooking, cleaning, self-care, laundry, shopping,

and money management. (Id.)

C. The Medical Opinion Evidence

Given this clinical history, a number of medical sources opined regarding the

degree to which Kishpaugh’s impairments were disabling. With one exception, these

medical experts concluded that, with some limitations, Kishpaugh could meet the

physical and emotional demands of the workplace.

With respect to Kishpaugh’s physical impairments there was a complete

consensus of opinion among the medical experts. As the ALJ noted:

The record includes a January 2021 statement from a state agency

medical consultant, Ruth Myers Arnold, DO, and an August 2021

statement from a state agency medical consultant, Louis Joseph

Tedesco, MD. They stated the claimant has no severe physical

impairments.

(Tr. 22).

As for Kishpaugh’s emotional impairments, with one exception, the experts

who examined her case concluded that she experienced at most moderate, but not

wholly disabling, impairments. In March of 2021, a state agency expert, Dr. Karen

Plowman, examined Kishpaugh’s medical records and found that she was

moderately impaired in terms of understanding, remembering or applying

information as well as concentrating, persisting, or maintaining pace. In terms of

interacting with others and adapt or managing, Dr. Plowman found that Kishpaugh

was only mildly impaired. (Tr. 65). Accordingly, the doctor determined that, in the

workplace, Kishpaugh would be moderately impaired in terms of carrying out

complex instructions and sustaining concentration over an extended period of time

but was not otherwise significantly limited in her workplace functioning. (Tr. 68-

70). Therefore, Dr. Plowman concluded that Kishpaugh: “is able to meet the mental

demands for simple routine tasks on a sustained basis despite the limitations

associated with her impairments.” (Tr. 70).

In August of 2021, these findings were echoed on reconsideration by another

state agency expert, Dr. Karen Weitzner. Dr. Weitzner also found that Kishpaugh

was moderately impaired in terms of understanding, remembering, or applying

information as well as concentrating, persisting, or maintaining pace but only mildly

impaired when it came to interacting with others and adapt or managing workplace

changes. (Tr. 83). Dr. Weitzner also concluded that Kishpaugh was: “able to meet

the mental demands for simple routine tasks on a sustained basis despite the

limitations associated with her impairments.” (Tr. 88).

On March 24, 2021, the consulting examining expert, Dr. Miller, reached

similar conclusions. (Tr. 751-56). Based upon his examination of Kishpaugh, the

doctor found that she would be moderately impaired in terms of her ability to carry

out instructions, work with others, and adapt to workplace changes. (Tr. 756).

However, nothing in Dr. Miller’s report suggested that Kishpaugh suffered from

marked or extreme emotional impairments. Thus, this medical consensus found

Kishpaugh to be only mildly to moderately impaired due to her emotional

conditions.

The only outlier opinion among these medical sources was the view expressed

by Kishpaugh’s counselor, Jeanne Fisk. (Tr. 1140-44). Despite her relatively

unremarkable treatment notes spanning several years, on January 10, 2022, Fisk

opined that Kishpaugh faced multiple extreme impairments in terms of meeting the

emotional demands of the workplace. (Id.)

It was against this medical background that Kishpaugh’s case came to be

considered by the ALJ.

D. The ALJ Decision

A hearing was conducted in Kishpaugh’s case on February 15, 2022. (Tr. 30-

58). Following this hearing, on February 24, 2022, the ALJ issued a decision in this

case denying Kishpaugh’s disability claim. (Tr. 12-25). In that decision, the ALJ

first concluded that Kishpaugh met the insured requirements of the Act through June

30, 2024, and had not engaged in substantial gainful activity since the alleged onset

date of July 9, 2019. (Tr. 17). At Step 2 of the sequential analysis that governs Social

Security cases, the ALJ found that Kishpaugh had the following severe emotional

impairments: adjustment disorder with mixed anxiety and depression; attention

deficit hyperactivity disorder; dissociation; and post-traumatic stress disorder. (Tr.

18). The ALJ also considered Kishpaugh’s physical impairments but found that they

were not severe stating:

The record shows the claimant has a history of hyperlipidemia,

constipation, skin lesion, and migraines (2F; 8F). Medication treated

her hyperlipidemia (2F). Medication managed her constipation (2F). A

shave biopsy treated her skin lesion (2F). In September 2021, the

claimant’s primary care provider noted the claimant’s “[l]ast migraine

was 2 weeks prior [to] our last visit. She has been migraine free since”

(8F/66). There is minimal medical evidence of record the claimant

received, since the amended alleged onset date, emergency room

treatment, urgent care, or ongoing specialist care for her migraines. In

making this finding, the undersigned considered SSR 19-4p, pertaining

to primary headache conditions. There is little evidence of record these

impairments more than minimally limit the claimant’s ability to

perform sustained work tasks. Thus, the undersigned finds these

conditions are non-severe impairments.

(Id.)

Nonetheless, the ALJ indicated that he: “considered all of the claimant’s

medically determinable impairments, including those that are not severe, when

assessing the claimant’s residual functional capacity.” (Id.)

At Step 3, the ALJ determined that Kishpaugh did not have an impairment or

combination of impairments that met or medically equaled the severity of one of the

disability listing impairments. (Tr. 18-19). This Step 3 determination rested upon a

comprehensive review of Kishpaugh’s emotional impairments as reflected in her

medical history. As the ALJ explained:

In understanding, remembering or applying information, the claimant

has a moderate limitation. She argues she has difficulty remembering

and slowed thought process (Hearing Testimony; 7E). However, she

states she helps care for her 13-year-old daughter and can prepare

microwaved meals, drive, shop in stores, pay bills, and count change

(Hearing Testimony; 7E). This implies she can understand, remember,

and apply information. Progress notes mostly show she is fully oriented

with appropriate thought content, intact memory, good recall, good

insight, and good judgment (2F; 3F; 4F; 7F; 8F; 9F; 11F).

In interacting with others, the claimant has a moderate limitation. The

claimant alleges she has limited socialization (Hearing Testimony; 7E).

Nonetheless, she notes she shops in stores and has no difficulty with

family, friends, neighbors, authority figures, and others (Hearing

Testimony; 7E). This implies she can interact with others. During a

March 2021 mental status consultative examination, she was fully

oriented, well groomed, and cooperative with normal posture, normal

motor behavior, appropriate eye contact, fluent and clear speech,

adequate expressive and receptive language, clear sensorium, fair

insight, and good judgment (6F).

With regard to concentrating, persisting or maintaining pace, the

claimant has a moderate limitation. The claimant alleges she does not

finish what she starts and has difficulty concentrating (Hearing

Testimony; 7E). Regardless, the claimant indicates she helps care for

her 13-year-old daughter; helps care for her dog; watches television;

reads; and can drive, shop in stores, and pay bills (Hearing Testimony;

7E). This implies she can concentrate, persist, and maintain pace. At a

March 2021 mental status consultative examination, she was fully

oriented with clear sensorium, intact attention and concentration, fair

insight, and good judgment (6F).

As for adapting or managing oneself, the claimant has experienced a

moderate limitation. She contends stress causes her to disassociate and

she has panic attacks (Hearing Testimony; 7E). However, she reports

she helps care for her 13-year-old daughter; has no problems with her

personal care activities; and can do laundry, drive, shop in stores, and

pay bills (Hearing Testimony; 7E). This implies she can adapt and

manage herself. Longitudinal treatment notes generally show she is

fully oriented with congruent affect, appropriate speech, appropriate

dress, appropriate thought content, intact memory, good recall, good

attention and concentration, good insight, and good judgment (2F; 3F;

4F; 7F; 8F; 9F; 11F).

(Tr. 18-19).

Between Steps 3 and 4, the ALJ then fashioned a residual functional capacity

(“RFC”) for the plaintiff which considered all of her impairments as reflected in the

medical record, and found that:

After careful consideration of the entire record, the undersigned finds

that the claimant has the residual functional capacity to perform a full

range of work at all exertional levels and she should avoid exposure to

excessive loud noises or bright lights. She has the mental capacity for

work that is limited to simple, routine, repetitive tasks with few, if any,

workplace changes and occasional interaction with supervisors,

coworkers, and the public.

(Tr. 19).

In fashioning this RFC, the ALJ considered the medical evidence, the expert

opinions, and Kishpaugh’s self-described limitations. (Tr. 18-23). This analysis

specifically considered the clinical and opinion evidence as it related to Kishpaugh’s

emotional impairments. On this score, the ALJ noted that:

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

limiting effects of her symptoms, they are inconsistent because of the

following reasons. Longitudinal treatment notes generally show the

claimant is fully oriented with euthymic mood, congruent affect,

appropriate speech, appropriate dress, appropriate thought content,

intact memory, good recall, good attention and concentration, good

insight, and good judgment (2F; 3F; 4F; 7F; 8F; 9F; 11F). During a

March 2021 mental status consultative examination, the claimant was

fully oriented, well groomed, and cooperative with normal posture,

normal motor behavior, and appropriate eye contact. She had fluent and

clear speech and adequate expressive and receptive language. She had

clear sensorium, intact attention and concentration, average intellectual

functioning, appropriate general fund of information, fair insight, and

good judgment (6F).

(Tr. 20-21).

Given this clinical history the ALJ found that the state agency and consulting

examiner opinions regarding Kishpaugh’s emotional RFC were generally

persuasive, observing that:

The record includes a March 2021 statement from a state agency

psychological consultant, Karen Louise Plowman, PsyD, and an

August 2021 statement from a state agency psychological consultant,

Karen Evelyn Weitzner, PhD. They stated the claimant has moderate

limitations understanding, remembering, or applying information; mild

limitations interacting with others; moderate limitations concentrating,

persisting, or maintaining pace; and mild limitations adapting or

managing herself (1A/7-8; 3A/9-10). These statements are supported

by the longitudinal treatment notes, which generally show the claimant

is fully oriented with euthymic mood, congruent affect, appropriate

speech, appropriate dress, appropriate thought content, intact memory,

good recall, good attention and concentration, good insight, and good

judgment (2F; 3F; 4F; 7F; 8F; 9F; 11F). These statements are also

consistent with the claimant’s lack of recent inpatient mental health

treatment or referral to crisis intervention. Further, Dr. Plowman and

Dr. Weitzner are highly qualified experts who had the opportunity to

review the claimant’s records. Accordingly, the undersigned finds these

statements are persuasive. However, based on the medical evidence of

record, the undersigned finds the claimant is slightly more limited as

she has moderate limitations interacting with others and adapting or

managing herself.

The record contains a March 2021 statement from John Laurence

Miller, PhD, who performed a mental status consultative examination

on the claimant. Dr. Miller stated the claimant has moderate limitations

in understanding, remembering, and carrying out instructions;

moderate difficulties interacting with supervisors, co-workers, and the

public; and moderate difficulties in responding appropriately to usual

work situations and to changes in a routine work setting (6F/7-8). This

statement is supported by his examination of the claimant, which shows

the claimant is fully oriented and cooperative with intact attention and

concentration, fair insight, and good judgment (6F). The statement is

also consistent with the claimant’s lack of recent inpatient mental health

treatment or referral to crisis intervention. Further, Dr. Miller is a highly

qualified expert who had the opportunity to assess, evaluate, and

examine the claimant. Thus, the undersigned finds Dr. Miller’s

statement is persuasive.

(Tr. 21-22).

In contrast, the ALJ afforded less persuasive power to the more extreme,

outlier opinion of Kishpaugh’s counselor, Jeanne Fisk, stating that:

This statement is unsupported by her treatment notes, which largely

show the claimant is fully oriented with congruent affect, appropriate

dress, normal speech, intact memory, good attention and concentration,

appropriate thought content, good insight, and good judgment (9F;

11F). This statement is also unsupported because it is a checklist with

limited explanation. Additionally, this statement is inconsistent with the

claimant’s activities of daily living, which shows she helps care for her

13-year-old daughter; has no problems with her personal care activities;

and can prepare microwaved meals, do laundry, drive, shop in stores,

and pay bills (Hearing Testimony; 7E). Further, this statement is

inconsistent with the claimant’s lack of recent inpatient mental health

treatment or referral to crisis intervention.

(Tr. 22).

Having made these findings, the ALJ concluded that Kishpaugh was unable

to perform her past relevant work but retained the ability to perform other jobs that

existed in significant numbers in the economy. (Tr. 23-25). Accordingly, the ALJ

concluded that Kishpaugh had not met the exacting standards for disability and

denied her claim. (Id.)

This appeal followed. (Doc. 1). On appeal, Kishpaugh argues that the ALJ

erred in evaluation of her severe and non-severe impairments and erred in finding

the opinion of Kishpaugh’s counselor, Jeanne Fink, unpersuasive. However, after a

review of the record, we find that substantial evidence supported the ALJ’s decision

in this case and therefore will affirm the decision of the Commissioner.

III. Discussion

A. Substantial Evidence Review – the Role of this Court

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

application for benefits, this Court’s review 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); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200

(3d Cir. 2008); Ficca v. Astrue, 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 adequate to

support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial

evidence is less than a preponderance of the evidence but more than a mere scintilla.

Richardson v. Perales, 402 U.S. 389, 401 (1971). 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 decision]

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 Supreme Court has recently underscored for us the limited scope of our

review in this field, noting that:

The phrase “substantial evidence” is a “term of art” used throughout

administrative law to describe how courts are to review agency

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––,

135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). 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. Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis

deleted). 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.” Ibid.; see,

e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks

omitted). It means—and means only—“such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v.

Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)

(comparing the substantial-evidence standard to the deferential clearly-

erroneous standard).

Biestek, 139 S. Ct. at 1154.

The question before this Court, therefore, is not whether the claimant is

disabled, but rather whether the Commissioner’s finding that he is not disabled is

supported by substantial evidence and was reached based upon a correct application

of the relevant law. See Arnold v. Colvin, 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); Burton v. Schweiker, 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.”); see also Wright v.

Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal

matters is plenary); Ficca, 901 F. Supp.2d at 536 (“[T]he court has plenary review

of all legal issues . . . .”).

Several fundamental legal propositions which flow from this deferential

standard of review. First, when conducting this review “we are mindful that we must

not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777

F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d

Cir. 2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence.

Rather our task is to simply determine whether substantial evidence supported the

ALJ’s findings. However, we must also ascertain whether the ALJ’s decision meets

the burden of articulation demanded by the courts to enable informed judicial

review. Simply put, “this Court requires the ALJ to set forth the reasons for his

decision.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000).

As the Court of Appeals has noted on this score:

In Burnett, we held that an ALJ must clearly set forth the reasons for

his decision. 220 F.3d at 119. Conclusory statements . . . are

insufficient. The ALJ must provide a “discussion of the evidence” and

an “explanation of reasoning” for his conclusion sufficient to enable

meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d

501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ

particular “magic” words: “Burnett does not require the ALJ to use

particular language or adhere to a particular format in conducting his

analysis.” Jones, 364 F.3d at 505.

Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

Thus, in practice ours is a twofold task. We must evaluate the substance of the

ALJ’s decision under a deferential standard of review, but we must also give that

decision careful scrutiny to ensure that the rationale for the ALJ’s actions is

sufficiently articulated to permit meaningful judicial review.

B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ

To receive benefits under the Social Security Act by reason of disability, a

claimant 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 20

C.F.R. §404.1505(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 activity that exists in the national economy. 42

U.S.C. §423(d)(2)(A); 20 C.F.R. §404.1505(a). To receive 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).

In making this determination at the administrative level, the ALJ follows a

five-step sequential evaluation process. 20 C.F.R. §404.1520(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).

Between Steps 3 and 4, the ALJ must also assess a claimant’s residual

functional capacity (RFC). RFC is defined as “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) (citations omitted); see also 20 C.F.R.

§§404.1520(e), 404.1545(a)(1). In making this assessment, the ALJ considers all of

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).

There is an undeniable medical aspect to an RFC determination, since that

determination entails an assessment of what work the claimant can do given the

physical limitations that the claimant experiences. Yet, when considering the role

and necessity of medical opinion evidence in making this determination, courts have

followed several different paths. Some courts emphasize the importance of medical

opinion support for an RFC determination and have suggested that “[r]arely can a

decision be made regarding a claimant’s residual functional capacity without an

assessment from a physician regarding the functional abilities of the claimant.”

Biller v. Acting Comm’r of Soc. Sec., 962 F. Supp. 2d 761, 778–79 (W.D. Pa. 2013)

(quoting Gormont v. Astrue, Civ. No. 11–2145, 2013 WL 791455 at *7 (M.D. Pa.

Mar. 4, 2013)). In other instances, it has been held that: “There is no legal

requirement that a physician have made the particular findings that an ALJ adopts

in the course of determining an RFC.” Titterington v. Barnhart, 174 F. App’x 6, 11

(3d Cir. 2006). Further, courts have held in cases where there is no evidence of any

credible medical opinion supporting a claimant’s allegations of disability that “the

proposition that an ALJ must always base his RFC on a medical opinion from a

physician is misguided.” Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D.

Pa. 2015).

These seemingly discordant legal propositions can be reconciled by

evaluation of the factual context of these decisions. Those cases which emphasize

the importance of medical opinion support for an RFC assessment typically arise in

the factual setting where a well-supported medical source has identified limitations

that would support a disability claim, but an ALJ has rejected the medical opinion

which supported a disability determination based upon a lay assessment of other

evidence. Biller, 962 F.Supp.2d at 778–79. In this setting, these cases simply restate

the commonplace idea that medical opinions are entitled to careful consideration

when making a disability determination, particularly when those opinions support a

finding of disability. In contrast, when an ALJ is relying upon other evidence, such

as contrasting clinical or opinion evidence or testimony regarding the claimant’s

activities of daily living, to fashion an RFC courts have adopted a more pragmatic

view and have sustained the ALJ’s exercise of independent judgment based upon all

of the facts and evidence. See Titterington v. Barnhart, 174 F. App’x 6, 11 (3d Cir.

2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D. Pa. 2015). In either

event, once the ALJ has made this determination, our 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. Burns v. Barnhart, 312 F.3d 113, 129 (3d

Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at

*5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar

v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun

v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12,

2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366

(M.D. Pa. Mar. 27, 2018).

At Steps 1 through 4, the claimant bears the initial burden of demonstrating

the existence of a medically determinable impairment that prevents him or her in

engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once this

burden has been met by the claimant, it shifts to the Commissioner at Step 5 to show

that jobs exist in significant number in the national economy that the claimant could

perform that are consistent with the claimant’s age, education, work experience and

RFC. 20 C.F.R. §404.1512(f); Mason, 994 F.2d at 1064.

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

requisites. Most significant among these legal benchmarks is a requirement that the

ALJ adequately explain the legal and factual basis for this disability determination.

Thus, in order to facilitate review of the decision under the substantial evidence

standard, the ALJ’s decision must be accompanied by “a clear and satisfactory

explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d

Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate

which evidence was accepted, which evidence was rejected, and the reasons for

rejecting certain evidence. Id. at 706-07. In addition, “[t]he 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., 181 F.3d 429, 433 (3d Cir. 1999).

C. Legal Benchmarks for the ALJ’s Assessment of Medical Opinions.

Kishpaugh filed his disability application following a paradigm shift in the

manner in which medical opinions were evaluated when assessing Social Security

claims. Prior to March 2017, ALJs were required to follow regulations that defined

medical opinions narrowly and created a hierarchy of medical source opinions with

treating sources at the apex of this hierarchy. However, in March of 2017, the

Commissioner’s regulations governing medical opinions changed in a number of

fundamental ways. The 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. As one court has aptly

observed:

The regulations regarding the evaluation of medical evidence have been

amended for claims filed after March 27, 2017, and several of the prior

Social Security Rulings, including SSR 96-2p, have been rescinded.

According to the new regulations, the Commissioner “will no longer

give any specific evidentiary weight to medical opinions; this includes

giving controlling weight to any medical opinion.” Revisions to Rules

Regarding the Evaluation of Medical Evidence (“Revisions to Rules”),

2017 WL 168819, 82 Fed. Reg. 5844, at 5867–68 (Jan. 18, 2017), see

20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner

must consider all medical opinions and “evaluate their persuasiveness”

based on the following five factors: supportability; consistency;

relationship with the claimant; specialization; and “other factors.” 20

C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c).

Although the new regulations eliminate the perceived hierarchy of

medical sources, deference to specific medical opinions, and assigning

“weight” to a medical opinion, the ALJ must still “articulate how [he

or she] considered the medical opinions” and “how persuasive [he or

she] find[s] all of the medical opinions.” Id. at §§ 404.1520c(a) and

(b)(1), 416.920c(a) and (b)(1). The two “most important factors for

determining the persuasiveness of medical opinions are consistency and

supportability,” which are the “same factors” that formed the

foundation of the treating source rule. Revisions to Rules, 82 Fed. Reg.

5844-01 at 5853.

An ALJ is specifically required to “explain how [he or she] considered

the supportability and consistency factors” for a medical opinion. 20

C.F.R. §§ 404.1520c (b)(2), 416.920c(b)(2). With respect to

“supportability,” the new regulations provide that “[t]he more relevant

the objective medical evidence and supporting explanations presented

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

administrative medical finding(s), the more persuasive the medical

opinions or prior administrative medical finding(s) will be.” Id. at §§

404.1520c(c)(1), 416.920c(c)(1). The regulations provide that with

respect to “consistency,” “[t]he more consistent a medical opinion(s) or

prior administrative medical finding(s) is with the evidence from other

medical sources and nonmedical sources in the claim, the more

persuasive the medical opinion(s) or prior administrative medical

finding(s) will be.” Id. at §§ 404.1520c(c)(2), 416.920c(c)(2).

Under the new regulations an ALJ must consider, but need not

explicitly discuss, the three remaining factors in determining the

persuasiveness of a medical source's opinion. Id. at §§ 404.1520c(b)(2),

416.920c(b)(2). However, where the ALJ has found two or more

medical opinions to be equally well supported and consistent with the

record, but not exactly the same, the ALJ must articulate how he or she

considered those factors contained in paragraphs (c)(3) through (c)(5).

Id. at §§ 404.1520c(b)(3), 416.920c(b)(3).

Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at

*5 (N.D.N.Y. Oct. 1, 2020).

Oftentimes, as in this case, an ALJ must evaluate various medical opinions.

Judicial review of this aspect of ALJ decision-making is still guided by several

settled legal tenets. First, when presented with a disputed factual record, it is well

established that “[t]he ALJ – not treating or examining physicians or State agency

consultants – must make the ultimate disability and RFC determinations.” Chandler

v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). Thus, when evaluating

medical opinions “the ALJ may choose whom to credit but ‘cannot reject evidence

for no reason or for the wrong reason.’” Morales v. Apfel, 225 F.3d 310, 317 (3d

Cir. 2000) (quoting Mason, 994 F.2d at 1066). Therefore, provided that the decision

is accompanied by an adequate, articulated rationale, it is the province and the duty

of the ALJ to choose which medical opinions and evidence deserve greater weight.

Further, in making this assessment of medical evidence:

An ALJ is [also] entitled generally to credit parts of an opinion without

crediting the entire opinion. See Thackara v. Colvin, No. 1:14–CV–

00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015);

Turner v. Colvin, 964 F. Supp. 2d 21, 29 (D.D.C. 2013) (agreeing that

“SSR 96–2p does not prohibit the ALJ from crediting some parts of a

treating source's opinion and rejecting other portions”); Connors v.

Astrue, No. 10–CV–197–PB, 2011 WL 2359055, at *9 (D.N.H. June

10, 2011). It follows that an ALJ can give partial credit to all medical

opinions and can formulate an RFC based on different parts from the

different medical opinions. See e.g., Thackara v. Colvin, No. 1:14–CV–

00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015).

Durden v. Colvin, 191 F.Supp.3d 429, 455 (M.D. Pa. 2016).

It is against these legal benchmarks that we assess the instant appeal.

D. The ALJ’s Decision is Supported by Substantial Evidence.

In this setting, we are mindful that we are not free to substitute our

independent assessment of the evidence for the ALJ’s determinations. Rather, we

must simply ascertain whether the ALJ’s decision is supported by substantial

evidence, a quantum of proof which is less than a preponderance of the evidence but

more than a mere scintilla, Richardson, 402 U.S. at 401, and “does not mean a large

or considerable amount of evidence, but rather such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Pierce, 487 U.S.

at 565. Judged against these deferential standards of review, we find that substantial

evidence supported the ALJ’s evaluation of Kishpaugh’s non-severe impairments

and the medical opinion evidence regarding her emotional impairments. Therefore,

we will affirm this decision.

In this case, Kishpaugh challenges the substance of this medical opinion

evaluation and, in particular, alleges that the AJ erred when he found Counselor

Fisk’s opinion unpersuasive. Kishpaugh also insists that the RFC in this case is

fundamentally flawed. However, we find that when the ALJ’s decision is read as a

whole and in a commonsense fashion substantial evidence which is well set forth by

the ALJ supports this decision.

On this score, with respect to medical opinions analysis: