# Kishpaugh v. Kijakazi

> District Court, M.D. Pennsylvania · April 10, 2025

URL: https://www.frixlaw.com/law-library/cases/10843025

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** April 10, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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).

1
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).

2
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.

3
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).

4
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.

5
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.

6
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

7
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

8
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.)

9
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

10
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

11
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).

12
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

13
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;

14
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

15
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.

16
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

17
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

18
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

19
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

20
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)

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(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

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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

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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

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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

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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

26
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

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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:
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

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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).

Waltz v. Dudek, No. 3:24-CV-1020, 2025 WL 714382, at *10 (M.D. Pa. Mar. 5,
2025).
In this case, the ALJ’s assessment of the persuasiveness of these medical
opinions expressly addressed the issues of supportability and consistency. In this
regard, the ALJ aptly noted that the state agency and consulting examining expert
opinions are consistent with one another, and with Kishpaugh’s clinical history and
activities of daily living. Moreover, substantial evidence in this clinical record
supported the ALJ’s reliance on these opinions. This clinical history repeatedly
found that Kishpaugh’s speech, thought content, judgment, perception, and behavior

were normal. There was no substantive error here.
Given this clinically well-supported medical consensus that Kishpaugh’s
emotional impairments were no more than moderate in their severity, the ALJ also
reasonably concluded that Counselor Fisk’s more extreme and outlying opinion

failed the consistency and supportability tests prescribed by law. Indeed, this opinion
was inconsistent with, and not fully supported by, Fisk’s own treatment notes.

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The ALJ’s decision, read as a whole, also clearly articulated the rationale for
this medical opinion analysis. On this score, the Court of Appeals’ decision in Hess

v. Comm’r Soc. Sec., 931 F.3d 198, 214 (3d Cir. 2019) is instructive. In Hess, the
appellate court described the degree of articulation required in this area, explaining
that that an ALJ offers a valid explanation for a simple task RFC when the ALJ

highlights factors such as “mental status examinations and reports that revealed that
[the claimant] could function effectively; opinion evidence showing that [the
claimant] could do simple work; and [the claimant]’s activities of daily living, which
demonstrated that [s]he is capable of engaging in a diverse array of ‘simple tasks[.]’”

Hess v. Comm’r Soc. Sec., 931 F.3d 198, 214 (3d Cir. 2019). That is precisely what
the ALJ did in this case. Fairly construed, the decision is grounded in the clinical
and medical opinion evidence, along with Kishpaugh’s activities of daily living.

While the plaintiff may have preferred a more fulsome explanation of this medical
opinion evidence, the ALJ’s recital is all that the law requires.
Finally, to the extent that Kishpaugh suggests that the ALJ erred at Step 2 of
this sequential analysis in determining that her physical impairments were not

severe, the plaintiff misconstrues both the law and the evidence. At step-two of the
sequential analysis, the ALJ determines whether a claimant has a medically severe
impairment or combination of impairments. Bowen v. Yuckert, 482 U.S. 137, 140-

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41, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). An impairment is considered severe if it
“significantly limits an individual's physical or mental abilities to do basic work

activities.” 20 C.F.R. 404.1520(c). An impairment is severe if it is “something
beyond a ‘slight abnormality which would have no more than a minimal effect on
the Plaintiff's ability to do basic work activities.’” McCrea v. Comm'r of Soc. Sec.,

370 F.3d at 357, 360 (3d Cir. 2004) (quoting SSR 85-28, 1985 WL 56856 (1985)).
The burden is on the claimant to show that an impairment qualifies as
severe. Bowen, 482 U.S. at 146, 107 S.Ct. 2287; Stancavage v. Saul, 469 F. Supp.
3d 311, 331 (M.D. Pa. 2020).

Moreover:
[E]ven if an ALJ erroneously determines at step two that one
impairment is not “severe,” the ALJ's ultimate decision may still be
based on substantial evidence if the ALJ considered the effects of that
impairment at steps three through five. However, where it appears that
the ALJ's error at step two also influenced the ALJ's RFC analysis, the
reviewing court may remand the matter to the Commissioner for further
consideration.

Mercado v. Kijakazi, 629 F. Supp. 3d 260, 282 (M.D. Pa. 2022) (collecting cases).

In the instant case, substantial evidence supported to ALJ’s Step 2
determination. The medical experts who considered Kishpaugh’s physical
impairments unanimously agreed that those conditions were not severe, and, as the
ALJ noted, the conditions responded well to treatment. Given this evidence, the ALJ

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correctly concluded that these conditions were not severe. Further, the ALJ expressly
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.” (Tr. 18). Therefore, even if the ALJ had erred in this
Step 2 analysis, that error would have been harmless given the ongoing consideration

of these impairments throughout the disability analysis.
In closing, the ALJ’s assessment of the evidence in this case complied with
the dictates of the law and was supported by substantial evidence. This is all that the
law requires, and all that a claimant can demand in a disability proceeding.

Therefore, we are obliged to affirm this ruling 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)). Accordingly, under the deferential standard of review that applies to appeals
of Social Security disability determinations, we find that substantial evidence
supported the ALJ’s evaluation of this case and affirm the decision of the

Commissioner.

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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.

S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
DATED: April 10, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10843025. Public record. Not legal advice.