Minarsky v. Kijakazi

Filing 16

MEMORANDUM (Order to follow as separate docket entry). Signed by Chief MJ Daryl F. Bloom on 8/29/24. (ae)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHERI MINARSKY,

:
:
:
:
:
:

Plaintiff,
v.
KIJAKAZI1,

KILOLO
Acting Commissioner
of Social Security,

Defendant.

:
:
:
:

Civil No. 1:23-CV-1000

(Magistrate Judge Bloom)
:

MEMORANDUM OPINION
I.

Introduction
On December 14, 2020, Sheri Minarsky (“Minarsky”) filed an

application for disability and disability insurance benefits. (Tr. 17). A
hearing was held before an Administrative Law Judge (“ALJ”), who
found that Minarsky was not disabled from her alleged onset date,
January 1, 2020, to the date she was last insured, December 31, 2021.
(Tr. 27).

Martin O’Malley became the Commissioner of the Social Security
Administration on December 20, 2023. Pursuant to Fed. R. Civ. P. 25(d),
Mr. O’Malley is substituted as the defendant in this case. Pursuant to 42
U.S.C. § 405(g), no further action is required to continue this suit.
1

Minarsky now appeals the ALJ’s decision, arguing that it is not
supported by substantial evidence. (Doc. 10). Specifically, Minarsky
contends the ALJ erred by inadequately articulating why he rejected
portions of several medical opinions that were favorable to her. (Id. at 514). After a review of the record, we conclude that the ALJ’s decision is
not supported by substantial evidence. Therefore, we will remand this
matter for further consideration by the Commissioner.
II.

Statement of Facts and of the Case
In October of 2015, Minarsky sought counseling with Amy M.

Clark, a licensed clinical social worker (“LCSW”), after her boss allegedly
sexually harassed her.

(Tr. 400-12).

During the initial counseling

session, Ms. Clark diagnosed Minarsky with major depressive disorder
(“MDD”) and generalized anxiety disorder (“GAD”). (Tr. 404). Minarsky
discontinued therapy in July of 2016 after she had “gained coping skills
and eliminated stressors from her life.” (Tr. 400). However, Minarsky’s
treatment notes indicate that she had filed a lawsuit against her
employer and that she might resume therapy as her court date
approached. (Id.).
2

In December of 2016, Minarsky resumed therapy with Ms. Clark
after losing her mother. (Tr. 394-97). Minarsky sporadically attended
therapy sessions until April of 2017. (Tr. 382-97). In November of 2018,
Minarsky briefly resumed therapy, but stopped seeking treatment in
January of 2019 after settling her lawsuit. (Tr. 374-77).
On October 27, 2020, Minarsky returned to therapy with Ms. Clark,
presenting with fatigue, noticeable weight gain, an anxious and
depressed mood, constricted affect, and paranoia. (Tr. 373). Based on
those symptoms, Ms. Clark diagnosed Minarsky with posttraumatic
stress disorder (“PTSD”). (Id.). Between October of 2020 and January of
2021, Minarsky engaged in therapy with Ms. Clark approximately once
per week. (Tr. 357-372). Treatment notes from that period indicate that
Minarsky’s speech, judgment, insight, behavior, thought processes,
perception, and sleeping habits were within normal limits.

(Id.).

However, Minarsky’s treatment notes indicate that between November
of 2020 and January of 2021, Minarsky experienced suicidal ideation and
exhibited a constricted affect. (Tr. 357-371).

3

On January 20, 2021, Minarsky attended an initial consultation
with Jacqueline Gillern, N.P. (“Nurse Gillern”), for medication
management. (Tr. 574). At that time, Minarsky was taking Effexor once
per day and Buspar as needed to manage her PTSD, MDD, and GAD.
(Tr. 574). During the visit, Minarsky reported that she had experienced
past sexual trauma and that, on a typical day, she slept in late, watched
television, used the computer, and played games on her phone. (Id.).
Nurse Gillern increased Minarsky’s Buspar dosage to twice per day and
directed her to continue taking Effexor. (Tr. 362, 580).
Between February and April of 2021, Minarsky met with Nurse
Gillern and Ms. Clark multiple times per month. (Tr. 350-61, 606, 92024). During her visits with Nurse Gillern, Minarsky reported that she
was feeling depressed, was “not manag[ing] her [activities of daily living]
on a daily basis,” was too anxious to go anywhere alone, and watched
television or played on her phone during the day to divert her attention
from her anxiety. (Tr. 606). During her visits with Ms. Clark, Minarsky
discussed various family issues and stress from her prior workplace
sexual assault. (Tr. 348-56, 926-33). Ms. Clark’s treatment notes state
4

that Minarsky often exhibited paranoid ideation, was depressed and
anxious, and displayed a constricted affect. (Tr. 348-56).
In May of 2021, Minarsky continued consulting regularly with
Nurse Gillern and Ms. Clark, and she attended a routine checkup with
Dr. Brenda T. Goodrich, D.O., her primary care physician. (Tr. 613-21,
566, 922-25). During her checkup, Minarsky displayed normal affect,
mood, thought content, behavior, and judgment.

(Tr. 566).

Nurse

Gillern’s treatment notes state that Minarsky’s concentration, attention,
and fund of knowledge were within normal limits but that her mood was
sad, her insight was poor, her thoughts were racing, and she felt helpless
and hopeless. (Tr. 617, 621). To mitigate these symptoms, Nurse Gillern
prescribed Risperdal and, when that proved ineffective, she increased
Minarsky’s Effexor dosage. (Tr. 613, 617).
In June and July of 2021, Minarsky reported modest psychological
improvements to Nurse Gillern and Ms. Clark.

(Tr. 628, 918, 921).

During an appointment with Ms. Clark, Minarsky reported that her
depression “may have decreased a little” after her Effexor dosage was
increased and that she was looking forward to a trip to Niagara Falls
5

with her husband. (Tr. 921). Similarly, Minarsky told Nurse Gillern that
after her Effexor dosage was increased, her anxiety decreased, her energy
increased, and she began showering and leaving the house more often.
(Tr. 628). For example, in July of 2021, Minarsky told Nurse Gillern that
she attended a Fourth of July parade. (Tr. 918).
In August and September of 2021, Minarsky reported additional
improvements during appointments with Dr. Goodrich, Nurse Gillern,
and Ms. Clark. (Tr. 639-43, 667, 673, 685, 808, 911-12). During her
sessions with Ms. Clark in August of 2021, Minarsky reported that she
planned to gather with family for her father’s birthday and that she and
her husband had taken their adult son and his friend out to dinner. (Tr.
911-12). Minarsky reported to Ms. Clark and Nurse Gillern that Buspar
was decreasing her social anxiety and stated to Nurse Gillern that she
was slowly making progress. (Tr. 639, 914). Nurse Gillern’s treatment
notes indicate that Minarsky appeared anxious, displayed fair insight
and judgment, and exhibited normal attention, concentration, speech,
and cognition. (Tr. 639-43). Similarly, Dr. Goodrich’s treatment notes

6

indicate that Minarsky’s mood and affect were normal and that she was
oriented to person, place, and time. (Tr. 667, 673, 685, 808).
In October of 2021, Minarsky sought treatment at a weight
management clinic and continued treating with Ms. Clark. (Tr. 662, 90809). During her appointment at the weight management clinic, Minarsky
was cooperative and interactive, displayed good social relatedness, had a
“bright” affect, exhibited good eye contact and speech, and displayed no
obvious neurological deficits. (Tr. 662). During her visits with Ms. Clark,
Minarsky reported that she had been driving her daughter to and from
work every day and that she felt overwhelmed handling her father’s
estate after he passed in September of 2021. (Tr. 908-09).
In January of 2022, shortly after her date last insured, Minarsky
reported to Ms. Clark and Nurse Gillern that she had been more socially
active. (Tr. 877, 879-81, 903). During her meetings with Ms. Clark,
Minarsky reported that she had flown to Georgia the previous month for
her niece’s baby shower. (Tr. 903). Minarsky reported to Nurse Gillern
that she was managing her activities of daily living, including handling
her father’s estate, and that she felt her current medication regimen was
7

working for her. (Tr. 877). Nurse Gillern’s treatment notes indicate that
Minarsky’s PTSD, MDD, and GAD were stable and that Minarsky
exhibited fair insight and judgment and normal speech, attention,
concentration, cognition, and mood. (Tr. 879-81).
In May of 2022, Minarsky continued experiencing anxiety but was
generally stable. (Tr. 789, 853-57). Ms. Clark’s treatment notes indicate
that Minarsky was alert and oriented, exhibited normal mood, had fluent
speech, and appeared stable on her current medication regimen. (Tr.
789). Similarly, Nurse Gillern’s notes state that Minarsky was anxious
but that her memory, speech, attention span, and fund of knowledge were
normal. (Tr. 853-57). Minarsky reported to Nurse Gillern that her mood
fluctuated from sad to neutral, that she was still having trouble sleeping,
and that she was stressed from handling her father’s estate. (Tr. 853).
However, she also reported that her medication regimen was still
working well. (Id.).
On June 8, 2022, Minarsky was evaluated by Marielle Stone, MD,
a consultative examiner. (Tr. 950). During the evaluation, Minarsky
reported that she cooked two to three times per week, cleaned one or two
8

times per week, did laundry twice per week, and could operate a vehicle.
(Tr. 951-52). Dr. Stone opined that Minarsky had very few physical or
environmental limitations but could never tolerate exposure to
pulmonary irritants. (Tr. 957-59).
On July 28, 2022, Minarsky was examined by Dr. Jennifer Betts,
Psy.D., a consultative examiner. (Tr. 977). Minarsky reported that,
depending on her energy levels, she could shop online, drive a vehicle,
cook, clean, and do laundry. (Tr. 981). Dr. Betts’s notes state that
Minarsky was cooperative and friendly and that her manner of relating,
social skills, and overall presentation were “adequate.” (Tr. 979). On
examination,

Dr.

Betts

found

that

Minarsky’s

attention

and

concentration were mildly impaired but that her memory was intact, her
thought processes were coherent and goal-directed, her cognitive
functioning was projected to be in the average range, her general fund of
information was appropriate for her age, and her insight and judgment
were fair to good. (Tr. 980).
Based on these examination results, Dr. Betts completed a medical
source statement, in which she evaluated Minarsky’s ability to work. (Tr.
9

982). Dr. Betts opined that Minarsky could understand, remember, and
carry out simple instructions and make judgments on simple workrelated decisions. (Id.). However, Dr. Betts found that Minarsky was
mildly impaired in her ability to understand, remember, and carry out
complex instructions and her ability to make judgments on complex
work-related decisions. (Tr. 982). She also opined that Minarsky was
moderately impaired in her ability to interact appropriately with the
public and with coworkers. (Id.). Finally, Dr. Betts found that Minarsky
was markedly impaired in her ability to interact appropriately with
supervisors and respond appropriately to usual work situations and
changes in a routine work setting. (Tr. 983). Dr. Betts explained that
she assessed those marked impairments because Minarsky’s “PTSD is
specifically related to work/boss context.” (Id.).
Against the backdrop of this evidence, the ALJ conducted a hearing
regarding Minarsky’s disability application on June 10, 2022, during
which Minarsky and a vocational expert both testified.

(Tr. 35-66).

Minarsky testified that she lives with her husband and two children, has
an associate degree in architecture, and previously worked as an order
10

picker at a warehouse, a clerk for the Veterans’ Affairs Office in
Susquehanna County, and a tax collector for Forest Lake Township. (Tr.
44-45, 47). Minarsky testified that her supervisor sexually assaulted her
between 2009 and 2013, causing her to suffer anxiety about returning to
work. (Tr. 49, 55). According to Minarsky, she did not return to work
after her term as tax collector ended because she became anxious when
members of the public came to her home to pay their taxes. (Tr. 48).
Minarsky testified that due to her anxiety, she spends most of her
time at home watching television, playing on her phone, reading, and
cooking, depending on how tired she is. (Tr. 51). Though Minarsky
testified that she can shop online, she maintains that she suffers panic
attacks if she shops alone in a store. (Tr. 51-52). Therefore, according to
Minarsky, her husband either goes grocery shopping for her or
accompanies her to the store. (Tr. 52). However, when questioned by the
ALJ, Minarsky acknowledged that she had travelled to Georgia with her
daughter in October of 2021. (Tr. 57).
In addition to anxiety, Minarsky also testified that she suffers from
paranoia and irritable bowel syndrome (“IBS”). (Tr. 54). According to
11

Minarsky, her paranoia prevents her from retrieving her mail from the
top of her driveway by herself. (Tr. 52). She also testified that her IBS
causes her to experience severe cramps and an urgent need to use the
bathroom within half an hour of eating. (Tr. 54). Therefore, according to
Minarsky, she has difficulty concentrating at work and can never work
far from a bathroom. (Id.).
After Minarsky testified, the ALJ heard testimony from Marian
Marracco, a vocational expert. (Tr. 58). The ALJ asked Ms. Marracco
several hypothetical questions pertaining to Minarsky’s residual
functional capacity (“RFC”)—that is, her “ability to do physical and
mental work activities on a sustained basis despite limitations from her
impairments.” (Tr. 19, 59-62). Upon questioning by Minarsky’s attorney,
Ms. Marracco testified that someone who frequently—that is, two thirds
of the time—was unable to respond appropriately to changes in a routine
work setting would likely be unable to maintain employment. (Tr. 63).
Following the hearing, on August 25, 2022, the ALJ issued a
decision denying Minarsky’s application for benefits. (Tr. 14-28). At Step
1 of the sequential analysis that governs Social Security cases, the ALJ
12

concluded that Minarsky did not engage in substantial gainful activity
between January 1, 2020, her alleged onset date, and December 31, 2021,
the date Minarsky was last insured. (Tr. 19). At Step 2, the ALJ found
that Minarsky suffered from the following severe impairments: PTSD,
anxiety disorder, depressive disorder, IBS, obesity, asthma, and diabetes.
(Id.).

At Step 3, the ALJ concluded that none of Minarsky’s severe

impairments met or equaled the severity of a listed impairment under
the Commissioner’s regulations. (Tr. 20-21).
Between Steps 3 and 4, the ALJ concluded that Minarsky had the
RFC to:
[P]erform less than the full range of light work as defined in
20 CFR 404.1567(b). Specifically, the claimant could
occasionally lift and carry twenty pounds, frequently lift and
carry ten pounds, sit for up to six hours, and stand or walk for
approximately six hours in an eight-hour day with normal
breaks. She could occasionally climb ramps or stairs;
occasionally climb ladders, ropes or scaffolds; and occasionally
balance, stoop, kneel, crouch, and crawl. She needed to avoid
concentrated exposure to extremes of cold or humidity, and
needed to avoid concentrated exposure to smoke, dust, and
respiratory irritants. She could perform work limited to
simple, routine, and repetitive tasks in a work environment
free of fast paced production requirements as would be
experienced on an assembly line; involving only simple, workrelated decisions; with few, if any, workplace changes. The
claimant could interact with supervisors on an occasional
13

basis throughout the workday after learning her job duties
from an instructional or demonstration lesson. She could
interact occasionally with coworkers and the public.
(Tr. 21).
In reaching this RFC determination, the ALJ considered the
objective medical record detailed above, Minarsky’s reported symptoms,
and the opinion evidence. (Tr. 21-26). Ultimately, the ALJ found that
Minarsky’s statements concerning the intensity, persistence, and
limiting effects of her impairments were not entirely consistent with the
objective medical evidence. (Tr. 24). In making this determination, the
ALJ reasoned that Minarsky’s attention span, concentration, insight,
judgment, thought content and processes, speech, affect, and mood were
often within normal limits. (Tr. 23). He also noted that Minarsky was
able to engage in substantial activities of daily living, such as travelling
to Georgia in October and December of 2021, serving as the executor of
her father’s estate, cooking, cleaning, doing laundry, operating a motor
vehicle, playing games on her phone, and online shopping. (Tr. 24).
After evaluating the objective medical evidence, the ALJ considered
the medical opinions in the record. (Tr. 24-26). First, the ALJ considered
14

the opinions of two state agency consultants—Dr. Sanjay M. Gandhi,
M.D., and Dr. Louis Joseph Tedesco, M.D. (Tr. 24). Both consultants
opined that Minarsky could stand, walk, or sit for six hours in a typical
8-hour workday. (Id.). Dr. Gandhi opined that Minarsky could never
climb ladders, ropes, or scaffolds, could occasionally crawl, and could
frequently climb ramps and stairs, balance, stoop, kneel, and crouch.
(Id.). Both doctors opined that Minarsky had no postural, manipulative,
visual, or communicative limitations. (Id.). While Dr. Tedesco opined
that Mianrsky also had no environmental limitations, Dr. Gandhi opined
that Minarsky should avoid concentrated exposure to extreme cold,
humidity, hazards, fumes, odors, dusts, and gasses. (Id.).
The ALJ found both opinions somewhat persuasive. (Tr. 24). He
found that both doctors explained their findings but noted that neither
doctor examined Minarsky and that both doctors reviewed an incomplete
medical record.

(Id.).

Ultimately, the ALJ found that the record

supported limiting Minarsky to light exertional work. (Id.).
The ALJ then considered Dr. Stone’s opinion, which he found
generally persuasive. (Tr. 25). The ALJ reasoned that Dr. Stone’s clinical
15

findings were largely consistent with other evidence, such as Minarsky’s
examination results and her reported activities of daily living. (Id.).
However, he found that Minarsky did not need to avoid all exposure to
pulmonary irritants because her respiratory clinical findings were
typically negative and there was limited evidence regarding her asthma.
(Id.).
The ALJ then considered several opinions regarding Minarsky’s
mental capabilities, the first of which was rendered by Dr. Karen Louise
Plowman, Psy.D., a state consultant. (Tr. 25). Dr. Plowman opined that
Minarsky could perform simple “one to two step tasks on a sustained
basis despite the limitations associated with her impairments.” (Tr. 80).
The ALJ found this opinion somewhat persuasive, reasoning that it was
consistent with other evidence, such as Minarsky’s daily activities. (Tr.
25).

However, the ALJ found that the record supported additional

limitations, which he did not specify in his opinion. (Id.).
The ALJ next considered the opinion of Anthony Galdieri, Ph.D., a
state consultant. (Tr. 25). Dr. Galdieri opined that Minarsky could
“make simple decisions and follow short simple directions using good
16

judgment[,]” “adapt to basic job-related changes [without] special
supervision[,]” and “understand, remember and carry out basic one-three
step command instructions on a consistent basis.”

(Tr. 90). The ALJ

found Dr. Galdieri’s opinion persuasive on the grounds that it was
supported by an explanation and was consistent with medical evidence
and Minarsky’s activities. (Tr. 25).
The ALJ then turned to the opinion of Amy Clark, Minarsky’s
therapist. (Tr. 25). Ms. Clark opined that Minarsky was either markedly
or extremely limited in all mental abilities needed to perform unskilled
work. (Tr. 849). For example, Ms. Clark found that Minarsky was
markedly limited in her ability to understand, remember, and carry out
very short and simple instructions and was extremely limited in her
ability to maintain regular attendance, complete a normal workday, and
deal with normal work stress. (Id.). Ms. Clark opined that because of
those limitations, Minarsky would have to be absent from work more
than three times per month. (Tr. 850).
The ALJ found Ms. Clark’s opinion less persuasive. (Tr. 25). The
ALJ reasoned that Ms. Clark’s opinion was inconsistent with Minarsky’s
17

treatment notes, which showed that she was cooperative and interactive,
exhibited normal attention and concentration, and displayed normal
behavior, and with the notes from Dr. Betts’s consultative examination,
which state that Minarsky was cooperative and friendly, displayed
adequate social skills, and only had mildly impaired attention and
concentration. (Id.). He also reasoned that Ms. Clark’s opinion was
inconsistent with Minarsky’s activities of daily living, which included her
ability to travel out of town. (Id.).
The ALJ next considered Nurse Gillern’s opinion. (Tr. 25). Nurse
Gillern opined that Minarsky was moderately limited in her ability to
remember work-like procedures and understand, remember, and carry
out very simple instructions and either markedly or extremely limited in
all other areas of work-related functioning, such as her ability to
maintain attention, regular attendance, and punctuality, sustain an
ordinary routine without special supervision, and perform at a consistent
pace. (Tr. 936). She also opined that Minarsky was extremely limited in
her ability to get along with coworkers or peers and respond
appropriately to changes in a routine work setting. (Id.). The ALJ
18

reasoned that Nurse Gillern’s opinion “was less persuasive, as it was not
supported by her treatment notes, which documented limited positive
clinical findings, and was inconsistent with the claimant’s activities, such
as using the computer, playing games, preparing food, driving, and
traveling out of town.” (Tr. 25).
Finally, the ALJ considered Dr. Betts’s opinion, which he found
somewhat persuasive. (Tr. 25-26). The ALJ reasoned that “[t]he marked
limitations [in Dr. Betts’s opinion] were not supported by Dr. Betts’
clinical findings, which were completely normal except for mild
impairment in attention and concentration.” (Tr. 26). The ALJ also
reasoned that “the marked limitations regarding responding to usual
work situations and changes in a routine work setting were inconsistent
with the claimant’s ability to drive and travel out of town.” (Id.).
Having made these findings, the ALJ found at Step 4 that Minarsky
could not perform her past work, but found at Step 5 that she could
perform other jobs in the national economy, such as garment sorter,
dispatcher-router, and mail clerk/sorter. (Tr. 26-27). Accordingly, the

19

ALJ found that Minarsky had not met the stringent standard prescribed
for disability benefits and denied her claim. (Tr. 27).
This appeal followed. On appeal, Minarsky challenges the ALJ’s
decision on the grounds that he failed to meet his burden of articulation
when evaluating the opinions of Dr. Betts, Nurse Gillern, and Ms. Clark
and failed to include all Minarsky’s credibly established limitations in
the hypothetical questions posed to the vocational expert. (Doc. 10 at 516).

As discussed in greater detail below, having considered the

arguments of counsel and carefully reviewed the record, we conclude that
the ALJ’s decision should be remanded for further consideration.
III.

Discussion
A.

Substantial Evidence Review – the Role of This Court

This Court’s review of the Commissioner’s decision to deny benefits
is limited to the question of whether the findings of the final
decisionmaker 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 means less than a preponderance of the evidence
20

but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401
(1971). 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).
A single piece of evidence is not substantial evidence if the ALJ
“ignores, or fails to resolve, a conflict created by countervailing evidence.”

Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993) (quoting Kent v.
Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)) (internal quotations
omitted).

However, where there has been an adequately developed

factual record, substantial evidence may be “something less than the
weight of the evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the ALJ’s decision] from
being supported by substantial evidence.” Consolo v. Fed. Maritime

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

21

The Supreme Court has explained the limited scope of our review,
noting that “[substantial evidence] means—and means only—‘such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Biestek, 139 S. Ct. at 1154 (quoting Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Under this standard, we
must look to the existing administrative record to determine if there is
“‘sufficient evidence’ to support the agency’s factual determinations.” Id.
Thus, the question before us is not whether the claimant is disabled, but
rather, whether the Commissioner’s finding that he or she is not disabled
is supported by substantial evidence and was based upon a correct
application of the law. 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

22

matters is plenary); Ficca, 901 F. Supp. 2d at 536 (“[T]he court has
plenary review of all legal issues . . . ”).
When conducting this review, “we must not substitute our own
judgment for that of the fact finder.” Zirnsak v. Colvin, 777 F.3d 607, 611
(3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.
2005)).

Thus, we cannot reweigh the evidence.

Instead, we must

determine whether there is substantial evidence to support the ALJ’s
findings. In doing so, we must also determine whether the ALJ’s decision
meets the burden of articulation necessary to enable judicial review; that
is, the ALJ must articulate the reasons for his decision. Burnett v.

Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). This does
not require the ALJ to use “magic” words, but rather, the ALJ must
discuss the evidence and explain the reasoning behind his or her decision
with more than just conclusory statements. See Diaz v. Comm’r of Soc.

Sec., 577 F.3d 500, 504 (3d Cir. 2009) (citations omitted). Ultimately, the
ALJ’s decision must be accompanied by “a clear and satisfactory
explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700,
704 (3d Cir. 1981).
23

B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ
To receive disability benefits under the Social Security Act, a
claimant must show that he or she is unable to “engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death, or which
has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A); see

also 20 C.F.R. §§404.1505(a), 416.905(a). This requires a claimant to
show a severe physical or mental impairment that precludes her from
engaging in previous work or “any other substantial gainful work which
exists in the national economy.”

42 U.S.C. §423(d)(2)(A); 42 U.S.C.

§1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits
under Title II of the Social Security Act, a claimant must show that he or
she is under retirement age, contributed to the insurance program, and
became disabled prior to the date on which he or she was last insured.
42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
In making this determination, the ALJ follows a five-step
evaluation.

20 C.F.R. §§404.1520(a), 416.920(a).
24

The ALJ must

sequentially determine whether the claimant: (1) is engaged in
substantial gainful activity; (2) has a severe impairment; (3) has a severe
impairment that meets or equals a listed impairment; (4) is able to do his
or her past relevant work; and (5) is able to do any other work,
considering his or her age, education, work experience and RFC. 20
C.F.R. §§404.1520(a)(4), 416.920(a)(4).
Between Steps 3 and 4, the ALJ must also determine the claimant’s
RFC. RFC is defined as “that which an individual is still able to do
despite the limitations caused by his or her impairment(s).” Burnett, 220
F.3d at 121 (citations omitted); see also 20 C.F.R. § 404.1545(a)(1). In
making this assessment, the ALJ must consider all the claimant’s
medically

determinable

impairments,

including

any

non-severe

impairments identified by the ALJ at Step 2 of his or her analysis. 20
C.F.R. §§404.1545(a)(2), 416.945(a)(2).

Our review of the ALJ’s

determination

is

of

the

plaintiff’s

RFC

deferential,

and

that

determination will not be set aside if it is supported by substantial
evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002).

25

The claimant bears the burden at Steps 1 through 4 to show a
medically determinable impairment that prevents her from engaging in
any past relevant work. Mason, 994 F.2d at 1064. If met, the burden
then shifts to the Commissioner to show at Step 5 that there are jobs in
significant numbers in the national economy that the claimant can
perform consistent with the claimant’s RFC, age, education, and work
experience. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d at 1064.
With respect to the RFC determination, courts have followed
different paths when considering the impact of medical opinion evidence
on this determination. While some courts emphasize the necessity of
medical opinion evidence to craft a claimant’s RFC, see Biller v. Acting

Comm’r of Soc. Sec., 962 F. Supp. 2d 761, 778–79 (W.D. Pa. 2013), other
courts have taken the approach that “[t]here is no legal requirement that
a physician have made the particular findings that an ALJ adopts in the
course of determining an RFC.” Titterington v. Barnhart, 174 F. App’x
6, 11 (3d Cir. 2006) (nonprecedential). Additionally, in cases that involve
no credible medical opinion evidence, courts have held that “the
proposition that an ALJ must always base his RFC on a medical opinion
26

from a physician is misguided.” Cummings v. Colvin, 129 F. Supp. 3d
209, 214–15 (W.D. Pa. 2015).
Given these differing approaches, we must evaluate the factual
context underlying an ALJ’s decision.

Cases that emphasize the

importance of medical opinion support for an RFC assessment typically
arise in the factual setting where well-supported medical sources have
found limitations to support a disability claim, but an ALJ has rejected
the medical opinion based upon an assessment of other evidence. Biller,
962 F. Supp. 2d at 778–79. These cases simply restate the notion that
medical opinions are entitled to careful consideration when making a
disability determination. On the other hand, when no medical opinion
supports a disability finding or when an ALJ relies upon other evidence
to fashion an RFC, courts have routinely sustained the ALJ’s exercise of
independent judgment based upon all the facts and evidence.

See

Titterington, 174 F. App’x 11-12; Cummings, 129 F. Supp. 3d at 214–15.
Ultimately, it is our task to determine, considering the entire record,
whether the RFC determination is supported by substantial evidence.

Burns, 312 F.3d 113.
27

C. Legal Benchmarks for the ALJ’s Assessment of Medical Opinions
The plaintiff filed this disability application on December 14, 2020,
after Social Security Regulations regarding the consideration of medical
opinion evidence were amended. Before March of 2017, the regulations
established a hierarchy of medical opinions, deeming treating sources to
be the gold standard.

However, in March of 2017, the regulations

governing the treatment of medical opinions were amended. Under the
amended regulations, ALJs are to consider several factors to determine
the persuasiveness of a medical opinion: supportability, consistency,
relationship with the claimant, specialization, and other factors tending
to support or contradict a medical opinion. 20 C.F.R. § 404.1520c(c).
Supportability and consistency are the two most important factors,
and an ALJ must explain how these factors were considered in his or her
written decision. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2); Blackman

v. Kijakazi, 615 F. Supp. 3d 308, 316 (E.D. Pa. 2022). Supportability
means “[t]he more relevant the objective medical evidence and
supporting explanations . . . are to support his or her medical opinion(s)
. . . . the more persuasive the medical opinions . . . will be.” 20 C.F.R. §§
28

404.1520c(c)(1), 416.920c(c)(1). The consistency factor focuses on how
consistent the opinion is “with the evidence from other medical sources
and nonmedical sources.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
While there is an undeniable medical aspect to the evaluation of
medical opinions, it is well settled that “[t]he ALJ – not treating or
examining physicians or State agency consultants – must make the
ultimate disability and RFC determinations.” Chandler v. Comm’r of

Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). When confronted with several
medical opinions, the ALJ can choose to credit certain opinions over
others but “cannot reject evidence for no reason or for the wrong reason.”

Mason, 994 F.2d at 1066. Further, the ALJ can credit parts of an opinion
without giving credit to the whole opinion and may formulate a
claimant’s RFC based on different parts of different medical opinions, so
long as the rationale behind the decision is adequately articulated. See

Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016).
D. This Case Should be Remanded to the Commissioner.
As we have noted, the ALJ must articulate his reasoning regarding
the supportability and consistency factors for each medical opinion. 20
29

C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). For the reasons set forth below,
we find that the ALJ has not met his burden of articulation with respect
to Ms. Clark’s, Nurse Gillern’s, and Dr. Betts’s opinions. Because we
cannot say at this juncture that the ALJ’s errors were harmless, remand
is required. Timothy J. B. v. O’Malley, No. 4:22-CV-1036, 2024 WL
968875, at *4 (M.D. Pa. Mar. 6, 2024) (explaining that remand is not
required unless there is “reason to believe that the remand might lead to
a different result.”) (quoting Moua v. Colvin, 541 F. App’x 794, 798 (10th
Cir. 2013)) (citation and internal quotation marks omitted).
i.

The ALJ Erred When Considering Ms. Clark’s Opinion.

Minarsky first argues that the ALJ failed to articulate his
reasoning regarding supportability and consistency when considering
Ms. Clark’s opinion. (Doc. 10 at 5-11). We agree in part. Though the
ALJ adequately explained his reasoning regarding consistency, he failed
to analyze supportability.
When addressing the consistency factor, the ALJ explained that
Ms. Clark’s opinion was inconsistent with Minarsky’s treatment notes,
which showed that she was cooperative and interactive, exhibited normal
30

attention and concentration, and displayed normal behavior, and
inconsistent with the notes from Dr. Betts’s consultative examination,
which state that Minarsky was cooperative and friendly, displayed
adequate social skills, and only had mildly impaired attention and
concentration. (Tr. 25). The ALJ also reasoned that Ms. Clark’s opinion
was inconsistent with Minarsky’s activities of daily living, which
included her ability to travel out of town. (Id.). Because the ALJ included
citations to the record, which provided more than a scintilla of evidence
for his reasoning, we find that the ALJ’s consistency analysis is
supported by substantial evidence. Solberg v. O’Malley, No. 23-CV-2639,
2024 WL 1943328, at *6 (E.D. Pa. Apr. 30, 2024) (finding that the ALJ
provided more than a scintilla of evidence where he included citations to
the record showing that the registered nurse’s opinion was inconsistent
with her own treatment notes and the plaintiff’s activities of daily living).
However, as Minarsky argues, the ALJ failed to address the
supportability factor. (Doc. 10 at 9). The ALJ did not consider the
supporting explanations in Ms. Clark’s opinion.

20 C.F.R. §§

404.1520c(c)(1), 416.920c(c)(1); Hammond v. O’Malley, No. 23-CV-2039,
31

2024 WL 2747966, at *11 (E.D. Pa. May 29, 2024) (holding that the ALJ
erred by failing to consider the supporting explanations in a medical
opinion). Nor did he evaluate whether the opinion contained “relevant []
objective

medical

evidence….”

20

C.F.R.

§§

404.1520c(c)(1),

416.920c(c)(1). The Commissioner notes that the ALJ considered Ms.
Clark’s treatment notes. (Doc. 12 at 19). However, those notes bear on
consistency, not supportability, because they are not referenced in Ms.
Clark’s opinion. See Solberg v. O’Malley, No. 23-CV-2639, 2024 WL
1943328, at *6 (E.D. Pa. Apr. 30, 2024) (holding that the ALJ failed to
address supportability even though he considered the expert’s treatment
notes). Because the ALJ failed to analyze the supportability of Ms.
Clark’s opinion, he committed error. Larkin v. O’Malley, No. 23-CV-275,
2024 WL 1675678, at *4 (D. Del. Mar. 28, 2024) (explaining that “[f]ailure
to evaluate supportability is error.”).
ii.

The ALJ Erred When Considering Nurse Gillern’s Opinion.

Minarsky also argues that the ALJ erred when considering Nurse
Gillern’s opinion. (Doc. 10 at 5-11). Again, we agree. The ALJ evaluated
Nurse Gillern’s opinion in one sentence, reasoning that it “was less
32

persuasive, as it was not supported by her treatment notes, which
documented limited positive clinical findings, and was inconsistent with
the claimant’s activities, such as using the computer, playing games,
preparing food, driving, and traveling out of town.” (Tr. 25). This single
sentence does not fulfil the ALJ’s obligation to explain how he evaluated
the consistency and supportability factors. Andrews v. Kijakazi, No.
1:20-CV-01878, 2022 WL 617118, at *8 (M.D. Pa. Mar. 2, 2022)
(remanding where “the ALJ tersely addressed both the supportability
and consistency of Dr. Todd’s opinion…in one sentence…”).
As Minarsky argues, the ALJ failed to analyze the supportability
factor when considering Nurse Gillern’s opinion. (Doc. 10 at 10-11). The
ALJ did not consider the supporting explanations in the opinion or
consider whether the opinion was supported by relevant medical
evidence, as the regulations require.

20 C.F.R. §§ 404.1520c(c)(1),

416.920c(c)(1); Hammond, 2024 WL 2747966, at *11 (holding that the
ALJ erred by failing to consider the supporting explanations in a medical
opinion).

To the extent the Commissioner argues that the ALJ

considered supportability by analyzing Nurse Gillern’s treatment notes,
33

he is incorrect. (Doc. 12 at 19). Because those treatment notes are not
referenced in Nurse Gillern’s opinion, they have no bearing on whether
the opinion was supported by “objective medical evidence and supporting
explanations.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1); See Solberg,
2024 WL 1943328, at *6 (holding that the ALJ failed to address the
sufficiency factor whatsoever even though he found that the expert’s
treatment notes contradicted her opinion). Accordingly, the ALJ failed
to evaluate the supportability factor when considering Nurse Gillern’s
opinion. For that reason alone, he committed error. Larkin, 2024 WL
1675678, at *4.
Additionally, the ALJ failed to articulate his reasoning regarding
the consistency factor. The ALJ’s statement that Nurse Gillern’s opinion
“was not supported by her treatment notes, which documented limited
positive clinical findings…” is too conclusory for this court to find that the
ALJ’s decision is supported by substantial evidence.

(Tr. 25); See

Alejandro v. O'Malley, No. 21-CV-04076, 2024 WL 1704904, at *4 (E.D.
Pa. Apr. 18, 2024) (finding that the ALJ offered “a conclusion, not an
explanation” when he stated that a doctor’s opinion was “‘inconsistent
34

with his own treatment notes…, which generally reflect mild mental
status examinations...’”). Moreover, because the ALJ failed to cite the
relevant treatment notes, we cannot meaningfully review his reasoning.

Brownsberger v. Kijakazi, No. 3:20-CV-01426, 2022 WL 178819, at *7
(M.D. Pa. Jan. 18, 2022) (remanding where, among other things, the “ALJ
d[id] not provide any citations to specific evidence on the record to explain
his reasoning….”). Because the ALJ did not adequately consider whether
Nurse Gillern’s opinion was consistent with other medical sources, his
consistency analysis is not supported by substantial evidence. See 20
C.F.R. § 416.920c(c)(2) (explaining that an ALJ must consider whether
each opinion is consistent “with the evidence from other medical sources

and nonmedical sources.”) (emphasis added).
iii.

The ALJ Erred When Considering Dr. Betts’s Opinion.

Finally, Minarsky argues that the ALJ erred when considering Dr.
Betts’s opinion.

(Doc. 10 at 11-15).

We agree.

When assessing

supportability, the ALJ reasoned that “the marked limitations were not
supported by Dr. Betts’ clinical findings, which were completely normal
except for mild impairment in attention and concentration.” (Tr. 26).
35

However, the ALJ failed to address the supporting explanations provided
by Dr. Betts. Though those explanations were terse, the ALJ’s failure to
address them whatsoever was erroneous. Hammond, 2024 WL 2747966,
at *11 (remanding where, among other things, the ALJ failed to address
a doctor’s limited explanation that the “Plaintiff’s past decompensation
occurred when working in a stressful, semi-skilled environment…”).
The ALJ also failed to provide substantial evidence for his
consistency analysis. When addressing consistency, the ALJ reasoned
that “the marked limitations regarding responding to usual work
situations and changes in a routine work setting were inconsistent with
the claimant’s ability to drive and travel out of town.” (Tr. 26). However,
the ALJ erred by failing to consider evidence from “other medical
sources,” as the regulations require.

20 C.F.R. § 416.920c(c)(2)

(explaining that an ALJ must consider whether each opinion is consistent
“with the evidence from other medical sources and nonmedical sources”);

see Hill v. Kijakazi, No. 22-CV-145, 2023 WL 6626125, at *9 (E.D. Pa.
Oct. 11, 2023) (finding that the ALJ erred when considering consistency

36

because he only considered evidence from one other medical source and
did not consider any nonmedical sources).
iv.

We Cannot Say That The ALJ’s Errors Were Harmless.

Having determined that the ALJ erred when considering Ms.
Clark’s, Nurse Gillern’s, and Dr. Betts’s opinions, we must now consider
whether those errors were harmless. Social Security appeals are subject
to harmless error analysis. See Holloman v. Comm’r Soc. Sec., 639 F.
App’x 810, 814 (3d Cir. 2016).

Under the harmless error analysis,

remand is warranted only if there is “reason to believe that the remand
might lead to a different result.” Timothy J. B., 2024 WL 968875, at *4
(quoting Moua, 541 F. App’x at 798) (citation and internal quotation
marks omitted). The plaintiff has the burden of showing that the ALJ’s
error was harmful. Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
Here, remand might lead to a different result if the ALJ finds the
opinions of Dr. Betts, Nurse Gillern, or Ms. Clark persuasive after full
consideration. 2 As Minarsky points out, the vocational expert testified

We take no position on whether the ALJ should have found those
opinions persuasive or, more broadly, whether the ALJ should have
granted Minarsky’s application.
37
2

that someone who is frequently unable to respond appropriately to
changes in a routine work setting would likely be unable to perform any
jobs in the national economy. (Doc. 10 at 7-8 (citing Tr. 61-66)). Because
Dr. Betts, Nurse Gillern, and Ms. Clark all opined that Minarsky was
either extremely or markedly impaired in her ability to respond
appropriately to changes in a routine work setting, the ALJ would likely
find that Minarsky is unable to work if he fully adopts any of their
opinions on remand. (Tr. 849, 936, 983). Additionally, Ms. Clark and
Nurse Gillern opined that Minarsky would be absent from work more
than three times per month, which, according to the vocational expert,
would preclude her from performing unskilled jobs, like those identified
by the ALJ. (Tr. 59, 62, 850, 937). Therefore, we cannot say that the
ALJ’s errors were harmless, and we must remand the case for further
consideration. 3

Minarsky also argues that the ALJ erred by failing to include all her
credibly established limitations in his hypothetical question to the
vocational expert. (Doc. 10 at 15-16). We will not separately address this
argument for two reasons. First, it is premised on Minarsky’s contention
that the ALJ erred in considering the opinions of Dr. Betts, Nurse
Gillern, and Ms. Clark, which we have addressed above. (Id.). Second,
determining a claimant’s limitations is beyond the scope of our review.
38

3

IV.

Conclusion
For the foregoing reasons, the decision of the Commissioner will be

REVERSED and this case will be REMANDED for a new hearing
pursuant to 42 U.S.C. § 405(g).
An appropriate order follows.
Submitted this 29th day of August 2024.

s/ Daryl F. Bloom

Daryl F. Bloom
Chief United States Magistrate Judge

See Johnson, 529 F.3d at 200 (explaining that the court’s review is

limited to whether the ALJ’s decision is supported by substantial
evidence).
39