Kadariya

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RENU MAYA KADARIYA, : CIVIL NO.: 1:25-cv-00464

:

Plaintiff, : (Magistrate Judge Schwab)

:

v. :

:

:

FRANK BISIGNANO,1 :

Commissioner of Social Security, :

:

Defendant. :

MEMORANDUM OPINION

I. Introduction.

In this social security action, Plaintiff Renu Maya Kadariya seeks judicial

review of the final decision of the Commissioner of Social Security

(“Commissioner”) denying her claim for disability insurance benefits under Title II

of the Social Security Act. We have jurisdiction under 42 U.S.C. § 405(g). For the

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

the case to the Commissioner for further proceedings.

1 Frank Bisignano is now the Commissioner of Social Security, and he is

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

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

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

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

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

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

such office.”).

II. Background and Procedural History.

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

9-8.2 On January 23, 2021, Kadariya protectively filed3 an application for

disability insurance benefits. See Admin. Tr. at 245–49. She contends that she has

been disabled since September 22, 2018. Id. at 248. After the Commissioner

denied her claim at the initial level and at the reconsideration level of

administrative review, Kadariya requested an administrative hearing. Id. at 58–92,

115–16. In December 2023, Kadariya—who was represented by counsel—as well

as a vocational expert testified at a hearing before Administrative Law Judge

Howard Kauffman (the “ALJ”). Id. at 34–57. In January 2024, the ALJ denied

Kadariya’s claim for benefits. Id. at 14–33. Kadariya appealed the ALJ’s decision

to the Appeals Council, which denied her request for review. Id. at 1–6. This

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

judicial review by this Court.

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

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

Kadariya’s claims.

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

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

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

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

the date the application is actually signed.” Id.

In March 2025, Kadariya, represented by counsel, began this action by filing

a complaint seeking review of the Commissioner’s decision denying her claim. See

Doc. 1. She requests that the court find that she is entitled to benefits, remand the

case to the Commissioner for further proceedings, or grant such relief as is

justified. Id. ¶ 14 (Wherefore Clause).

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

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

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

proceedings. Docs. 8, 9. The parties filed briefs, see docs. 14, 19, 20, and this

matter is ripe for decision.

III. Legal Standards.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But in an adequately developed factual record, substantial evidence may be

“something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent [the ALJ’s] finding

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

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

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

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

The question before this court, therefore, is not whether Kadariya is

disabled, but whether substantial evidence supports the Commissioner’s finding

that she is not disabled and whether the Commissioner correctly applied the

relevant law.

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

To receive benefits under Title II of the Social Security Act, 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); 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 work that exists in the national economy. 42 U.S.C.

§ 423(d)(2)(A); 20 C.F.R. § 404.1505(a).

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

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

program, is under retirement age, and became disabled prior to the date on which

he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).4

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

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

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

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

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

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

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

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

ALJ determined that Kadariya met the insured-status requirements through March

31, 2023. Admin. Tr. at 17, 19.

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

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

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

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

(5) whether the claimant is able to do any other work, considering his or her age,

education, work experience, and residual functional capacity (“RFC”). 20 C.F.R.

§ 404.1520(a)(4)(i)–(v).

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

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

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

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

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

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

claimant’s medically determinable impairments, including any non-severe

impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R.

§ 404.1545(a)(2).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. The ALJ’s Decision.

On January 30, 2024, the ALJ denied Kadariya’s claim for benefits. Admin.

Tr. at 14–33. He proceeded through the first four steps of the five-step sequential-

evaluation process.

A. Step One.

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

Kadariya had not engaged in substantial gainful activity since her alleged onset

date of September 22, 2018, through March 31, 2023, her date last insured. Id. at

19.

B. Step Two.

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

Kadariya had the following severe impairments: depression, somatic disorder,

degenerative disc disease, degenerative joint disease, post-traumatic stress

disorder, and tinnitus. Id.5 The ALJ also found that Kadariya’s diverticulosis,

thyroid issued, GERD, B12 deficiency, ulcer, and myopia were not severe

impairments. Id. at 19–20. He further concluded that Kadariya “has a non-

medically determinable impairment of Alzheimer’s and traumatic brain injury

(TBI)” Id. at 20.

C. Step Three.

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

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

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

ALJ’s decision, we omit the ALJ’s citations to regulations as well as citations to

the record.

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

1. Id. at 20–22. Specifically, the ALJ considered Listings 1.15, 1.16, and 1.18

with respect to Kadariya’s physical impairments. Id. at 20.

The ALJ considered Listings 12.04, 12.06 and 12.15 with respect to

Kadariya’s mental impairments. Id. at 20–22. In doing so, he considered the four

broad areas of mental functioning set forth in the disability regulations for

evaluating mental disorders6 and in the listings, known as the paragraph B criteria.7

6 When “mental impairments are at issue, additional inquiries are layered on

top of the basic five-step disability analysis.” Hess v. Comm’r Soc. Sec., 931 F.3d

198, 202 (3d Cir. 2019). The regulations set forth a “special technique” used for

evaluating mental impairments. See 20 C.F. R. § 404.1520a. As part of that

“special technique,” a claimant’s degree of functional limitation is rated in four

broad functional areas: understanding, remembering, or applying information;

interacting with others; concentrating, persisting, or maintaining pace; and

adapting or managing oneself. Id. at § 404.1520a(c)(3). A claimant’s degree of

limitation in these functional areas is rated using “the following five-point scale:

None, mild, moderate, marked, and extreme.” Id. at § 404.1520a(c)(4). The ratings

in these four broad functional areas are used at Step 2 to determine if the claimant

has a severe mental impairment, and if the claimant has a severe mental

impairment, the ratings are also used at Step 3 to determine if the claimant’s severe

mental impairment meets or equals a listed mental disorder. Id. at § 404.1520a(d).

7 The listings for mental disorders contain either two paragraphs (A and B)

or three paragraphs (A, B, and C). See 20 C.F.R. § Pt. 404, Subpt. P, App. 1,

12.00.A.2. Except as to Listing 12.05 (intellectual disorder), paragraph B of each

of the listings for the mental disorders sets forth the same four functional criteria as

set forth in 20 C.F. R. § 404.1520a, and the listings use the same five-point rating

scale as those regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00.A.2.b,

12.00.E, 12.00.F. This is what the ALJ is referring to when he refers to the

paragraph B criteria.

The ALJ determined that Kadariya had a marked limitation in

understanding, remembering, or applying information. Id. at 21. He acknowledged

that Kadariya “reported that she needs assistance with cooking, preparing food, and

cleaning.” Id. at 21. But the ALJ noted that Kadariya also “report[ed] that she

cooks four times per week,” and her “son reported that she makes rice and curry,

folds clothes, and irons.” Id. The ALJ also recognized that Kadariya “reportedly

needs reminders to attend to personal care and to take medications,” and she

“reportedly cannot travel alone.” Id.

The ALJ determined that Kadariya had a moderate limitation in interacting

with others. Id. In this regard, the ALJ noted that Kadariya “socializes with others

in person, on the phone, and via video chat,” but she “has no community

involvement and socializes only with her family.” Id. She visits family, is able

shop in stores with her family, and she attends Temple. Id. The ALJ also asserted

that Kadariya “stated that she walks with friends.” Id.8

The ALJ also determined that Kadariya had a moderate limitation in

concentrating, persisting, or maintaining pace. Id. In this regard, the ALJ stated

that Kadariya “reported that she enjoys watching television” and “that she does not

8 The ALJ cites Kadariya’s testimony to support this assertion. Kadariya

testified that when she walks with friends, she needs a cane. Admin. Tr. at 39. But

when the ALJ asked her who her friends were, she testified that they were her

caregiver or caretaker. Id. at 40. And her attorney clarified that Kadariya’s

caretaker is her son. Id.

finish was she starts and can only pay attention for [].” Id.[9] He also noted that

“[d]uring the consultative examination, [Kadariya] was noted to have mildly

impaired attention and concentration” and “she was able to count to 10 but was

unable to perform simple calculations due to a lack of formal education.” Id.

The ALJ further determined that Kadariya had a moderate limitation in

adapting or managing oneself. Id. He stated that Kadariya is able to feed herself

and dress, bathe, and groom herself. Id. And “[o]n examination she appeared well-

groomed.” Id. The ALJ noted that Kadariya “reported that she is not able to

manage money or drive,” but “she is able to count change and pay bills.” Id.

Kadariya’s “case manager reported that she is able to manage changes in routine,

but does not handle stress well.” Id.

Because the ALJ concluded that Kadariya’s did not have at least two

“marked” limitations or one “extreme” limitation, he concluded that “the

‘paragraph B’ criteria were not satisfied.” Id. He also determined that Kadariya

did not satisfy the paragraph C criteria. Id. The ALJ recognized that the paragraph

B criteria are not an RFC; rather, they “are used to rate the severity of mental

impairments at steps 2 and 3 of the sequential evaluation process[,]” and the RFC

9 The ALJ did not finish this sentence. We note that at the hearing when

asked if she has difficulty focusing on things, Kadariya testified: “I don’t have

focus on anything. The only thing I’m focusing is on the pain that I’m feeling so

the pain overtakes my focusing abilities and I have to focus thinking about pain.”

Admin. Tr. at 47 (grammatical errors in original).

“assessment used at steps 4 and 5 of the sequential evaluation process requires a

more detailed assessment of the areas of mental functioning.” Id. at 21–22. And he

asserted that the RFC that follows “reflects the degree of limitation” he “has found

in the ‘paragraph B’ mental function analysis.” Id. at 22.

D. The RFC.

The ALJ then determined that Kadariya had the RFC to perform light work10

with some limitations. Id. He concluded that Kadariya could do light work “except

occasional postural limitations.” Id.11 He concluded that she “can perform simple,

routine, and repetitive tasks,” but “[s]he cannot work at a production pace.” Id.

And “[s]he can occasionally interact with the public, co-workers, and supervisors.”

Id. The ALJ further concluded that Kadariya “is limited to a low stress job, defined

as few workplace changes with an SCO noise level no greater than 3.” Id.

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

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

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

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

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

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

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

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

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

time.”).

11 The ALJ did not explain what he means by “except occasional postural

limitations,” but because neither party raises an issue in that regard, we do not

address that issue further.

In making this RFC assessment, the ALJ briefly considered Kadariya’s

testimony regarding her limitations:

[Kadariya] reported that she takes medication and injections for

her back every three months. She stated that she uses a cane

when walking with friends. She reported that she falls and

experiences a burning sensation throughout her body.

[Kadariya] stated that when she is sitting she feels that her knee

is going to explode. She stated that she has difficulty focusing

due to pain. [Kadariya] also testified that she has trouble

hearing due to ringing in her ears.

Id. The ALJ concluded that although Kadariya’s “medically determinable

impairments could reasonably be expected to cause the alleged symptoms[,]” her

“statements concerning the intensity, persistence and limiting effects of these

symptoms are not entirely consistent with the medical evidence and other evidence

in the record for the reasons explained in this decision.” Id.

The ALJ also considered Kadariya’s medical records and the treatment she

received. Id. at 23–24. As to Kadariya’s mental impairments,12 the ALJ stated that

Kadariya was diagnosed with somatic symptom disorder, that she complains of

pain all over—including abdominal pain, back pain, and leg pain—and that she has

treated with gabapentin and duloxetine for her pain and “mirtazapine and

duloxetine for persistent depression symptoms and somatic symptom disorder with

12 Because our determination in this case turns on the ALJ’s treatment of

Kadariya’s mental impairments, we do not recount the ALJ’s discussion of the

medical records regarding Kadariya’s physical impairments or the opinion

evidence regarding her physical impairments.

chronic pain.” Id. at 23. He noted that Kadariya “reported benefit from these

medications.” Id.

The ALJ summarized the report from a psychological consultative

examination Kadariya underwent in May 2021. Id. at 24. He noted that Kadariya

“reported that she has never seen a therapist” that “she began seeing a psychiatrist

in 2018 but was not seeing one at the time of examination,” and that she had

“difficulty falling asleep, loss of appetite, no suicidal/homicidal ideation, and

reported memory deficits.” Id. During the examination, Kadariya “exhibited

satisfactory hygiene and grooming,” “[s]he had appropriate eye contact and

appropriate affect,” and “[s]he could count to 10.” Id. “She has no formal

education and was not able to do simple calculations.” Id. And she “had difficulty

with memory tasks.” Id. Further “[h]er general fund of knowledge was somewhat

limited,” but she “had fair insight and judgment.” Id.

The ALJ also summarized the report from a consultative mental status

evaluation that Kadariya underwent in September 2021:

[Kadariya] reported that all of her mental health treatment

regimens are provided through her primary care physician. She

reported difficulty falling asleep, dysphoric moods, feelings of

hopelessness, fatigue, difficulty concentrating, diminished

sense of pleasure, worry, and social withdrawal. On

examination she exhibited coherent and goal-directed thought

process, dysthymic and anxious mood, and depressed and

anxious affect. [Kadariya] was unable to perform serial 3s or

7s. She was not able to recall 3/3 objects immediately or

following a delay. [Kadariya] appeared cooperative and

friendly. She did not evidence significant emotional distress

during the evaluation.

Id.

The ALJ observed that although Kadariya “occasionally appeared with

depressed mood and flat affect, . . . records largely show that [she] presented with

appropriate mood, normal affect, normal memory, and normal judgment.” Id. He

further noted that during Kadariya’s “physical consultative examination, no

obvious signs of memory impairment were noted,” and that “an April 2022

examination noted findings of pleasant and normal affect, intact memory, normal

speech, normal attention and concentration.” Id. And he concluded that “[t]he

longitudinal evidence of record does not fully support [Kadariya]’s allegations

regarding the extent of her impairments.” Id. “With regard to [Kadariya]’s mental

impairments,” he stated that “although the consultative examinations indicate that

[Kadariya] had marked mental health issues, as discussed above, the majority of

the record shows that [Kadariya] had largely normal findings.” Id. The ALJ

asserted that his residual functional capacity assessment “takes into account the

objective evidence coupled with [Kadariya]’s subjective reports by finding that she

is capable of light work with postural, environmental, and mental limitations.” Id.

According to the ALJ, “[t]he totality of the record, including [Kadariya]’s review

of symptoms or presentation of her illness, fails to support a greater degree of

limitation.” Id.

The ALJ further considered the medical opinions in the record. Id. at 25–26.

Specifically, as to Kadariya’s mental impairments, he considered the opinions of

Drs. Gavazzi, Ross, Ledermann, and Kajic. Id.13

The ALJ considered the opinions of Dr. Gavazzi and Dr. Ross—the state

agency medical consultants—together. Id. at 25. He noted that “Dr. Gavazzi

opined [to] mild to moderate limitations in the paragraph “B” criteria and further

opined that [Kadariya] can perform one or two step routine tasks in a stable

environment.” Id. He stated that Dr. Gavazzi “based this opinion on symptoms

including depression, anxiety, limited social skills, difficulty adapting to changes,

as well as information that [Kadariya] has not been hospitalized psychiatrically and

does not participate in psychotherapy.” Id. The ALJ recounted that “[o]n

reconsideration Dr. Ross opined [to] moderate to marked limitations and further

opined that [Kadariya] would be unable to meet the basic mental demands to

13 The ALJ also referred to purported opinions by Drs. Toll and Scher.

Admin. Tr. at 26. He asserts that these doctors “opined [to] no limitation in the

paragraph “B” criteria[,]” and that “the claimant’s mental health impairment is

non-severe.” Id. The ALJ concluded that these purported opinions are not

persuasive. Id. The ALJ does not cite to where in the record these purported

opinions are located, and we were not able to locate them. And curiously, when

citing to the exhibits that he considered inconsistent with these purported opinions,

the ALJ cites to Exhibits 24F, 31F, 33F, 36F, and 44F, see id., even though the last

exhibit in the record in this case is 28F, see doc. 9-1 at (Court Transcript Index).

Because neither party raises an issue regarding these purported opinions and our

conclusion does not depend on them or on the ALJ’s treatment of them, we need

not address the issue further.

complete 1-2 step tasks on a sustained basis.” Id. Dr. Ross “based her opinion on

data from [Kadariya]’s case manager and findings from the second consultative

evaluation.” Id. The ALJ found “these opinions less than persuasive as [Kadariya]

received her mental health care from her primary care physician and those mental

status findings contained in the record show that [Kadariya] exhibited pleasant and

normal affect, intact memory, normal speech, normal attention and concentration.”

Id. According to the ALJ, “[t]hese normal mental status findings, taken into

consideration with the findings from the consultative examinations, are not

consistent with such significant limitations.” Id.

The ALJ also found the opinion of Dr. Lederman, who conducted a May

2021 mental status evaluation of Kadariya,14 less than persuasive. Id. at 26. He

noted that Dr. Ledermann opined that Kadariya “would have modest limitations in

her ability to understand, remember and carry out simple instructions and make

judgments on simple work-related decisions,” “marked to extreme limitations in

the ability to carry out, understand, remember, and make judgment on complex

instructions and work-related decisions,” and “mild social limitations.” Id. at 26.

The ALJ states that Dr. Lederman “supported her opinion with findings on

examination and noted that [Kadariya] had no formal education.” Id. He

concluded that “[m]ild social limitations are not consistent with reports that

14 See Admin. Tr. at 1001-16.

[Kadariya] socializes only with family and has no community involvement,” and

“[e]xtreme limitations are not consistent with treatment notes from [Kadariya]’s

primary care provider that note findings of normal affect, intact memory, normal

speech, normal attention and concentration.” Id.

The ALJ similarly found the opinion of Dr. Kajic, who had conducted a

September 2021 mental status and intelligence evaluation,15 less than persuasive:

John Kajic, Psy.D. opined [to] marked to extreme limitations.

He supported his opinion with reference to neurocognitive

disorder and PTSD. However, this opinion lacks overall

support as the neurocognitive disorder was based on a reported

history of dementia and not on testing or objective findings.

Furthermore, this opinion is not consistent with the longitudinal

record. [Kadariya’s] mental status findings contained in the

record show that [Kadariya] exhibited pleasant and normal

affect, intact memory, normal speech, normal attention and

concentration. Accordingly, this opinion is less than

persuasive.

Id.

The ALJ stated that he considered statements submitted by Kadariya’s son

and her case manager. Id. at 26. But because those statements are from non-

medical sources, the ALJ asserted that “he need not articulate how this evidence

was considered in terms of persuasiveness.” Id. And he did not further address

how those statements were considered.

15 See Admin. Tr. at 1151–67.

The ALJ then pronounced that his RFC assessment “is supported by the

objective medical evidence and the record as a whole.” Id. He declared that

“[e]ven though the record indicates that [Kadariya] did have some limitations due

to her impairments, the record also shows that [her] impairments were not as

limiting as she has alleged, and she maintained the ability to perform work related

activities within the residual functional capacity assigned.” Id.

E. Step Four.

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

Kadariya was capable of performing her past relevant work at a

housekeeper/cleaner. Id. at 26–27.

Because the ALJ found that Kadariya could perform her past relevant work,

he did not proceed to step five the sequential-evaluation process. In sum, the ALJ

concluded that Kadariya “was not under a disability, as defined in the Social

Security Act, at any time from September 22, 2028, the alleged onset date, through

March 31, 2023, the date last insured.” Id. at 27 (bold omitted). Thus, he denied

Kadariya’s claim for benefits. Id.

V. Discussion.

Kadariya presented three claims: (1) the ALJ failed to properly evaluate the

opinion of Dr. Kajic, M.D.; (2) substantial evidence does not support the ALJ’s

mental RFC assessment; and (3) the ALJ erred by failing to properly evaluate her

hearing limitations. Because the ALJ’s discussion of Dr. Kajic’s opinion is part of

the ALJ’s mental RFC assessment, Kadariya’s first two claims are interrelated, and

we address them together. And because these claims involve the ALJ’s RFC

assessment and opinion testimony, before addressing the merits of those claims, we

set forth general standards regarding the RFC assessment and the evaluation of

opinion testimony.

A. The RFC.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

residual functional capacity with the deference required of the substantial evidence

standard of review.”).

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

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

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

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

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

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

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

B. Opinion Testimony.

Under the current regulations, the ALJ evaluates the persuasiveness of

medical opinions and prior administrative medical findings using the following

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the objective medical evidence and supporting explanations presented by a medical

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

evidence because the ALJ did not adequately articulate his reasons for

finding the opinion of Dr. Kajic less than persuasive and he did not

adequately articulate the basis for his RFC assessment.

Kadariya contends that the ALJ failed to properly address Dr. Kajic’s

opinion. She also contends that the ALJ’s mental RFC assessment is not supported

by substantial evidence. We agree with both contentions.

Dr. Kajic conducted a mental status and intelligence evaluation on Kadariya

in September 2021. Admin. Tr. at 1151–67. He set forth Kadariya’s background,

history, and reports of current functioning. Id. at 1151–53. He also set forth the

results of his mental status examination, and he concluded that the “[r]esults of the

evaluation are considered to be a valid and reliable estimate of current

functioning.” Id. at 1153–55. Dr. Kajic further conducted a Test of Nonverbal

Intelligence. Id. at 1155. And he reported that Kadariya had an index score of 68

on this test, which “was considered very poor.” Id. In addition to listing the

medical diagnosis reported by Kadariya, Dr. Kajic set forth his diagnoses as

follows:

Major neurocognitive disorder due to a reported

history of dementia, per history, per report.

Depressive disorder due to another medical condition.

Anxiety disorder due to another medical condition.

Posttraumatic stress disorder.

Id. at 1155–56. He concluded that Kadariya’s prognosis was guarded given her

“age, psychiatric history, and level of memory issues.” Id. at 1156. Dr. Kajic also

completed a “Medical Source Statement of Ability to Do Work-Related Activities

(Mental).” Id. at 1157–1159. He opined that Kadariya has marked and extreme

limitations due to a neurocognitive disorder, PTSD, anxiety and depression. Id.

Kadariya contends that the ALJ failed to properly address Dr. Kajic’s

opinion for several reasons including that the ALJ states that Dr. Kajic based his

opinion regarding her having a neurocognitive disorder on a reported history of

dementia, and not on testing or objective findings, but the ALJ failed to note that

Dr. Kajic conducted a Test of Nonverbal Intelligence. In fact, the ALJ does not

mention the Test of Nonverbal Intelligence when assessing Dr. Kajic’s opinion.

See Admin. Tr. at 26. Nor does he mention it when summarizing Dr. Kajic’s

report. Id. at 24. Although “[t]here is no requirement that the ALJ discuss in [his]

opinion every tidbit of evidence included in the record,” Hur v. Barnhart, 94 F.

App’x 130, 133 (3d Cir. 2004), the “ALJ may not reject pertinent or probative

evidence without explanation,” Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 204

(3d Cir. 2008). Otherwise, ‘“the reviewing court cannot tell if significant probative

evidence was not credited or simply ignored.’” Burnett, 220 F.3d at 121 (quoting

Cotter, 642 F.2d at 705). Here, the ALJ’s failure to acknowledge that Dr. Kajic

conducted a Test of Nonverbal Intelligence on Kadariya and that Kadariya scored

very poorly on that test is concerning. This is especially so where the basis for the

ALJ’s finding that Dr. Kajic’s decision was less than persuasive was, at least in

part, based on a lack of testing.

Moreover, while Dr. Kajic stated that his diagnosis of a neurocognitive

disorder was “due to a reported history of dementia, per history, per report,” id. at

1155, he indicated that his opinions regarding Kadariya’s functioning were based

not only on a neurocognitive disorder, but also on PTSD, anxiety, and depression,

id. at 1157–58. And there is no reasonable basis to think that his opinions were

based only on history or reports rather than his mental status evaluation of

Kadariya as well as the result of his testing. Accordingly, the ALJ’ cursory

conclusion that Dr. Kajic’s opinion is not supported because his diagnosis of a

neurocognitive disorder was based on history and report fails to satisfy his duty to

articulate his reasoning sufficient to allow meaningful judicial review of his

analysis.

Kadariya also contends that substantial evidence does not support the ALJ’s

mental RFC assessment. Her argument in this regard is multifaceted. One facet of

her argument is that the ALJ failed to articulate why he chose the functional

restrictions that he did in light of the evidence. See doc. 14 at 16 (stating that “the

ALJ failed to set forth a supported rationale for his RFC findings”); id. at 18 (“The

ALJ failed to explain how, given the available evidence (Ms. Kadariya’s

testimony, medical evidence, etc.), he included the functional restrictions that he

chose to include in his assessment of Ms. Kadariya’s RFC); doc. 20 at 5 (stating

that “the Commissioner argues that the ALJ is not required to rely on a matching

medi[c]al opinion to assess a claimant’s RFC,” but asserting that “the

Commissioner missed Plaintiff’s argument—the ALJ failed to set forth a supported

rationale for his RFC findings”). We agree that the ALJ failed to sufficiently

explain his RFC assessment. For example, he failed to explain why he determined

that Kadariya can perform “simple, routine, and repetitive tasks”16 in light of the

evidence and in light of his determination that Kadariya has moderate limitations

in concentrating, persisting, or maintaining pace and marked limitations in

understanding, remembering, or applying information.

16 For ease of reference, we will refer to that limitation as a simple-tasks

limitation. “A limitation to ‘simple tasks’ is fundamentally the same as one ‘to

jobs requiring understanding, remembering, and carrying out only simple

instructions and making only simple work-related decisions[.]’” Hess v. Comm’r

Soc. Sec., 931 F.3d 198, 210 (3d Cir. 2019) (citations omitted).

The Third Circuit addressed whether an ALJ’s RFC simple-tasks limitation

is permissible where the ALJ found at step 3 of the five-step sequential evaluation

process that the claimant had moderate limitations in concentration, persistence, or

pace. Hess, 931 F.3d at 208–13. The Third Circuit held that “as long as the ALJ

offers a ‘valid explanation,’ a ‘simple tasks’ limitation is permitted after a finding

that a claimant has ‘moderate’ difficulties in ‘concentration, persistence, or pace.’”

Id. at 211. The court explained that a valid explanation is necessary because of the

close relationship between a “simple tasks” limitation and concentration,

persistence, or pace:

[S]uch limitations directly encompass and anticipate a minimal

level of ability in that functional area. “[U]nderstanding,

carrying out, and remembering simple instructions” includes

“[t]he ability to maintain concentration and attention for

extended periods (the approximately 2-hour segments between

arrival and first break, lunch, second break, and departure)[;]

[t]he ability to perform activities within a schedule … [;] [t]he

ability to sustain an ordinary routine without special

supervision[;] … [and] [t]he ability to complete a normal

workday and workweek without interruptions from

psychologically based symptoms and to perform at a consistent

pace and without an unreasonable number and length of rest

periods.”

Id. at 212-13 (citations omitted) (alterations in original). A valid explanation is

necessary to elucidate why the claimant’s difficulties are not so significant to

prevent him or her from performing simple tasks. Id. at 212. The Third Circuit has

adopted a “fact-specific ‘valid explanation’ approach” and the outcome of each

case depends on the particular facts. Id. at 213.

The ALJ in Hess “highlighted, among other things, the following: mental

status examinations and reports that revealed that Hess could function effectively;

opinion evidence showing that Hess could do simple work; and Hess’s activities of

daily living, which demonstrated that he is capable of engaging in a diverse array

of ‘simple tasks.’” Id. at 214. And the court in Hess concluded that the ALJ in that

case provided a valid explanation for her limitation to simple tasks given that she

explained “with sound reasoning why Hess’s ‘moderate’ difficulties in

‘concentration, persistence, or pace’ were not so significant that Hess was

incapable of performing ‘simple tasks.’” Id. at 213. “For example, coupled with

her finding that Hess had ‘moderate difficulties’ in ‘concentration, persistence or

pace,’ the ALJ explained that Hess’s ‘self-reported activities of daily living, such

as doing laundry, taking care of his personal needs, shopping, working, and paying

bills (when he has money), . . . are consistent with an individual who is able to

perform simple, routine tasks.’” Id. at 213–14. And “[i]n the same discussion, the

ALJ also observed that ‘progress notes from treating and examining sources

generally indicate no serious problems in this area of functioning, reporting that

[Hess] could perform simple calculations, was fully oriented, and had intact

remote/recent memory.’” Id. at 214.

Here, unlike in Hess, the ALJ did not adequately explain his finding that

Kadariya can perform simple tasks. In making that finding, the ALJ does not

mention Kadariya’s activities of daily living, and he does not rely on opinion

evidence as he found all the opinions in the record regarding Kadariya’s mental

functioning to be not persuasive or less than persuasive. Further, although he cites

to mixed notations in Kadariya’s medical records regarding observations of mental

status during specific appointments, he makes no effort to explain how those

translate into Kadariya being able to do simple tasks even though she has

moderation limitations in concentrating, persisting, or maintaining pace and

marked limitations in understanding, remembering, or applying information. Here,

again, the ALJ failed to satisfy his duty to articulate his reasoning sufficiently to

allow meaningful judicial review of his analysis.

The ALJ’s articulation errors are not harmless. “Ordinary harmless error

review, in which the appellant bears the burden to demonstrate harm, is applicable

to administrative appeals.” Holloman v. Comm’r Soc. Sec., 639 F. App’x 810, 814

(3d Cir. 2016). Thus, a claimant must explain ‘“how the . . . error to which he

points could have made any difference.’” Id. (quoting Shinseki v. Sanders, 556

U.S. 396, 413 (2009)). “An error is ‘harmless’ when, despite the technical

correctness of an appellant’s legal contention, there is also ‘no set of facts’ upon

which the appellant could recover.” Brown v. Astrue, 649 F.3d 193, 195 (3d Cir.

2011). Here, Dr. Kajic opined that Kadariya had numerous marked and extreme

limitations, and the ALJ himself found that Kadariya had moderate and marked

limitations. In light of this, we cannot say the ALJ’s articulation errors were

harmless.

D. Other Claim.

Given our conclusion as to Kadariya’s first two claims, we will not address

her remaining claim of error. “Plaintiff’s additional claim[] of error may be

remedied through the case’s treatment on remand.” Brown v. Saul, No. CV 3:18-

1619, 2020 WL 6731732, at *7 (M.D. Pa. Oct. 23, 2020), report and

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

remand may produce different results on [that] claim[], making discussion of [that

claim] moot.” Id.

E. Remand is the appropriate remedy.

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

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

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

appropriate remedy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

claimant is disabled and entitled to benefits.” Id.

Here, although Kadariya’s claim has been pending since 2021, we cannot

say, at this point, that there has been excessive delay in the litigation of Kadariya’s

claim. And we cannot say that substantial evidence on the record as a whole

shows that she is disabled and entitled to benefits. Thus, we will remand the case

to the Commissioner for further proceedings.

VI. Conclusion.

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

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

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

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge