Boylstein v. Berryhill

Filing 18

MEMORANDUM OPINION re: Social Security Appeal (Order to follow as separate docket entry). Signed by Magistrate Judge Martin C. Carlson on November 16, 2018. (kjn)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KURT BOYLSTEIN,

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Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant

Civil No. 4:18-CV-174

(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Introduction
For Administrative Law Judges (ALJs), Social Security disability

determinations frequently entail an informed assessment of competing medical
opinions coupled with an evaluation of a claimant’s subjective complaints. Once
the ALJ completes this task, on appeal it is the duty and responsibility of the
district court to review these ALJ findings, judging the findings against a
deferential standard of review which simply asks whether the ALJ’s decision is
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), a quantum of proof which “does not mean a
large or considerable amount of evidence, but rather such relevant evidence as a
1

reasonable mind might accept as adequate to support a conclusion.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
In the instant case, an ALJ denied a disability application submitted by Kurt
Boylstein, a man in his 40’s whose self-reported activities of daily living disclosed
a significant level of physical and emotional functioning. After reviewing this
evidence, the competing medical opinions offered by Boylstein’s physician and a
state agency expert, and taking into account his activities of daily living, the ALJ
denied this claim. Mindful of the fact that substantial evidence is less than a
preponderance of the evidence but more than a mere scintilla, Richardson v.
Perales, 402 U.S. 389, 401 (1971), we find that substantial evidence supported the
ALJ’s findings in this case. Therefore, for the reasons set forth below, we will
affirm the decision of the Commissioner denying this claim.
II.

Statement of Facts and of the Case
A.

Medical and Procedural History

On September 15, 2014, Kurt Boylstein applied for disability insurance
benefits pursuant to Title II of the Social Security Act, alleging the onset of his
disability in July of 2011. (Tr. 20.) Boylstein was born in 1967 and was in his 40’s
at the time of the alleged onset of this disability. (Tr. 26.) He had a high school
education and had previously been employed as a correctional officer. (Tr. 26-7.)
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According to Boylstein he was disabled due to the combined impact of
degenerative disc disease, obesity, bi-polar and post-traumatic stress disorders. (Tr.
22.) Despite these impairments, Boylstein described an active and full lifestyle in
his disability application and at his disability hearing. For example, in October of
2014 Boylstein described his activities of daily living in the following terms:
My whole day is spent caring for my son. I might do some reading,
clean the kitchen, do laundry, put his toys away. When my wife gets
home, I usually read, shower, cook breakfast and lunch.
(Tr. 172).
Boylstein further explained that that he had no problems with his personal care,
(Tr. 172), was able to go out alone and drive, (Tr. 173), shopped for groceries,
books, and music, (Tr. 174), and enjoyed an array of hobbies including reading,
watching sports and old movies, and walking. (Tr. 175.) While reporting episodes
of anxiety, Boylstein also described an intellectually and physically demanding
lifestyle, stating that he reads every day, walks three to four times a week without
problems, (Tr. 175), and is "fine" walking a couple of miles. (Tr. 176.) Boylstein
also reported that he regularly exercised at a gym (Tr. 175) and testified at his
October 2016 disability hearing before the ALJ that up until "a couple of months"
prior to the hearing, he "was going to the gym every day, five days a week." (Tr.
51.)
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At the administrative hearing on October 19, 2016, Boylstein also testified
that that since the alleged onset of his disability in 2011, he had vacationed in
Tennessee, and traveled to Niagara Falls and Gettysburg. (Tr. 45.) In addition to
providing child care for his son while his wife worked,1 Boylstein described a
significant level of intellectual functioning in the form of recreational reading,
testifying that: "I read pretty much anything, horror, science fiction, true crime,
historical fiction-I'm reading a lot of right now," and stating that he was still able to
read "bigger books, like 4 or 500 pages" in just "a week or two." (Tr. 52.)
Boylstein’s medical records also generally presented a picture of a person
who faced some impairments, but retained the capacity to engage in substantial
activities. For example, in February and July of 2016 Boylstein’s primary care
physicians reported that his strength was 5/5 bilaterally, the motor strength in his
extremities was intact, and his reflexes were normal. (Tr. 433.) In addition these
examinations revealed that Boylstein had full range of motion with no deformities
or effusions. (Tr. 436.). Likewise, Boylstein was described as displaying a normal
affect, being alert and oriented, and demonstrating articulate and fluent speech. (Tr.
1

Boylstein described this child care and work arrangement in the following terms:
"[b]ecause one of the things we looked into, other than me not being able
to work, was that a consistent babysitting would be almost my paycheck
for five days a week," he had elected to remain at home providing child care while
his wife worked. (Tr. 53).
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433.) Boylstein himself reported to his primary care physician that he was "[d]oing
well overall" and "[d]oing well" with his depression and anxiety. (Tr. 435.)
With respect to Boylstein’s emotional state, the principal issue presented in
this appeal, the record before the ALJ presented a mixed and equivocal picture of
the degree to which Boylstein’s emotional impairments were wholly disabling.
Boylstein had treated these mental health conditions through Commonwealth
Affiliates Services, Inc. from January 2010 to August 2016. (Tr. 339-419.) These
treatment records revealed that Boylstein was being treated for depression and
anxiety through medication and counseling. (Id.) In the course of this treatment, he
reported greater difficulty with anxiety than with his depression, but Boylstein
consistently presented as cooperative and appropriate, and denied severe symptoms
such as suicidal or homicidal thoughts, delusions or hallucinations. (Id.)
Even though the medical records seemed to reflect a fairly constant state of
care and reported no acute episodes, on September 6, 2016, Michael S. Greevy,
Ph.D., a psychologist with Commonwealth Affiliates Services, Inc., completed a
mental impairment questionnaire for Boylstein in which he opined that Boylstein
was uncomfortable around others, distractible, self-doubting, easily tired, overreactive to criticism, aloof, anxious, and unfocused. According to Dr. Greevy
Boylstein was unable to maintain attention for two-hour segments, make simple
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work-related decisions, perform at a consistent pace with excessive breaks,
respond appropriately to changes in a routine work setting, and deal with work
stress. (Tr. 335.) Dr. Greevy also found that Boylstein had marked functional
limitations in maintaining social functioning and with concentration, persistence,
or pace, (Tr. 337), and would be absent from work about four days a month due to
his impairments or treatment. (Tr. 338.) Accordingly, Dr. Greevy expressed the
opinion that Boylstein’s mental impairments were wholly disabling. (Tr. 419.)
Dr. Greevy’s opinion stood in stark contrast to Boylstein’s reported activities
of daily living and was also contradicted by the opinion of an examining
consultative source, Michael DeWulf, Ph.D., who conducted a mental status
examination of Boylstein on February 10, 2015. (Tr. 289,) Dr. DeWulf’s report of
this examination reflected that Boylstein drove to this examination, (Tr. 289), was
casually dressed and well groomed, (Tr. 290), and displayed normal posture and
motor behavior, (Tr. 290), as well as appropriate eye contact. (Tr. 290.) Boylstein’s
speech was fluent, his voice was clear, and his expressive and receptive language
was adequate. (Tr. 290.) His thought process was coherent and goal-directed with
no evidence of hallucinations, delusions, or paranoia. (Tr. 290.) His affect was
appropriate, he was oriented, and his attention and concentration appeared intact.
(Tr. 291.) His insight and judgment were good. (Tr. 291.)
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Boylstein also confirmed for Dr. DeWulf his ability to perform a full range
of activities of daily living, explaining that he was able to dress, bathe, and groom
himself; (Tr. 291), he cooked and prepared food; (Tr. 291), performed general
cleaning and laundry; (Tr. 291), and was able to shop, manage money, drive, and
use public transportation. (Tr. 291.) His hobbies and interests included coin and
stamp collecting, collecting memorabilia and books, listening to music, watching
television, visiting the Friendship Center, exercising, and reading. (Tr. 291.)
Based upon this examination, and after taking into account Boylstein’s selfreported activities, Dr. DeWulf disgnosed Boylstein with bi-polar and posttraumatic stress disorders, but found that these impairments did not appear to be
significant enough to interfere with Boylstein’s ability to function on a daily basis.
(Tr. 292.) Instead, Dr. DeWulf found that Boylstein’s ability to understand,
remember, and carry out instructions was not affected by his impairments; he had
no limitations in interacting appropriately with the public; he had mild limitations
in interacting with supervisors and co-workers; and he had mild limitations in
responding appropriately to usual work situations and to changes in a routine work
setting. (Tr. 294.)

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B.

The ALJ’s Decision

It was against this medical and factual backdrop that the ALJ conducted a
hearing into Boylstein’s disability claim on October 19, 2016. (Tr. 33-66.)
Boylstein and a vocational expert appeared and testified at this hearing. (Id.)
Following this ALJ hearing, on December 30, 2016, the ALJ issued a decision
denying this application for disability benefits. (Tr. 17-28.) In this decision, the
ALJ first found that Boylstein met the insured requirements of the Social Security
Act through December 31, 2016. (Tr. 22.) At Step 2 of the five-step sequential
analysis process that applies to Social Security disability claims, the ALJ
concluded that Boylstein experienced the following severe impairments:
degenerative disc disease, obesity, bi-polar and post-traumatic stress disorders. (Tr.
22.) At Step 3 of this sequential analysis, the ALJ determined that none of
Boylstein’s impairments met a listing that would define him as per se disabled. (Tr.
22-24.)
Before considering Step 4, the ALJ fashioned Boylstein’s residual functional
capacity. In this regard, the ALJ concluded that Boylstein retained the residual
functional capacity to perform:
[M]edium work as defined in 20 CFR 404.1567(c) except he can
never climb ladders, ropes, or scaffolds. The claimant can frequently
stoop, kneel, crouch, or crawl. He should avoid concentrated exposure
to hazards, including unprotected heights and moving mechanical
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parts. He can occasionally [interact] with supervisors and coworkers,
but never interact with the public. He is limited to simple, routine
tasks, but not at a production rate pace, with no more than an
occasional change in the work setting. He will be off task five percent
of the day.
(Tr. 24.)
In reaching this conclusion the ALJ canvassed the medical opinion and
clinical evidence, along with the Boylstein’s reported activities of daily living. (Tr.
24-26.) In reviewing this medical evidence, the ALJ gave no single opinion
controlling weight but found that Dr. DeWulf’s opinion that Boylstein’s emotional
impairments were not disabling was entitled to greater weight than Dr. Greevy’s
treating source opinion that Boylstein was disabled from any employment. In
reaching this judgment, the ALJ noted that Dr. DeWulf’s opinion was more
consistent with Boylstein’s self-described activities of daily living and found that
Dr. Greevy’s more restrictive opinion concerning Boylstein’s limitations was not
borne out by the doctor’s own, fairly conservative treatment notes. The ALJ further
concluded that Boylstein’s statements regarding the severity and persistence of his
symptoms were not entirely consistent with the evidence, including his own
physically and intellectually active lifestyle. (Id.)
Having made these findings, the ALJ concluded at Step 4 of this sequential
analysis that Boylstein could not return to his past relevant work, but concluded at
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Step 5 that he could undertake other jobs that existed in significant numbers in the
national economy. (Tr. 26-28.) Accordingly, the ALJ determined that Boylstein
was not disabled and denied his claim for disability benefits. (Id.)
This appeal followed. (Doc. 1.)
On appeal, Boylstein advances a threefold attack upon the ALJ’s finding that
he was not disabled. First, Boylstein asserts that the ALJ improperly assigned little
weight to the treating source opinion of Dr. Greevy. Second, Boylstein argues that
the ALJ’s residual functional capacity assessment is deficient because it is not fully
supported in every respect by a medical opinion, thus creating an “evidentiary
deficit” in Boylstein’s view. Third, Boylstein insists that the ALJ erred in his
evaluation of the persistence and severity of his emotional impairments. This case
is fully briefed and is now ripe for resolution.
For the reasons set forth below, under the deferential standard which applies
to review of ALJ disability determinations, we find that substantial evidence in the
record supported each of the adverse rulings made by the ALJ which Boylstein
now challenges on appeal. We further find that the ALJ’s decision sufficiently
articulates the factual underpinnings of these determinations in a way which
permits meaningful judicial review of this decision. Therefore, we will affirm the
decision of the Commissioner.
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III.

Discussion
A.

Substantial Evidence Review – the Role of this Court

When reviewing the Commissioner’s final decision denying a claimant’s
application for benefits, this Court’s review is limited to the question of whether
the findings of the final decision-maker are supported by substantial evidence in
the record. See 42 U.S.C. §405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198,
200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp.2d 533, 536 (M.D.Pa. 2012).
Substantial evidence “does not mean a large or considerable amount of evidence,
but rather such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”

Pierce v. Underwood, 487 U.S. 552, 565 (1988).

Substantial evidence is less than a preponderance of the evidence but more than a
mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of
evidence is not substantial evidence if the ALJ ignores countervailing evidence or
fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d
1058, 1064 (3d Cir. 1993).

But in an adequately developed factual record,

substantial evidence may be “something less than the weight of the evidence, and
the possibility of drawing two inconsistent conclusions from the evidence does not
prevent [the ALJ’s decision] from being supported by substantial evidence.”
Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966). “In determining if
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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 the claimant is
disabled, but rather whether the Commissioner’s finding that he is not disabled is
supported by substantial evidence and was reached based upon a correct
application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014
WL 940205, at *1 (M.D.Pa. Mar. 11, 2014)(“[I]t has been held that an ALJ’s
errors of law denote a lack of substantial evidence.”)(alterations omitted); Burton
v. Schweiker, 512 F. Supp. 913, 914 (W.D.Pa. 1981)(“The Secretary’s
determination as to the status of a claim requires the correct application of the law
to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting
that the scope of review on legal matters is plenary); Ficca, 901 F. Supp.2d at 536
(“[T]he court has plenary review of all legal issues . . . .”).
Several fundamental legal propositions which flow from this deferential
standard of review. First, when conducting this review “we are mindful that we
must not substitute our own judgment for that of the fact finder.” Zirnsak v.
Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford, 399 F.3d at 552).
Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather our
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task is to simply determine whether substantial evidence supported the ALJ’s
findings. However, we must also ascertain whether the ALJ’s decision meets the
burden of articulation demanded by the courts to enable informed judicial review.
Simply put, “this Court requires the ALJ to set forth the reasons for his decision.”
Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). As the
court of appeals has noted on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for
his decision. 220 F.3d at 119. Conclusory statements . . . are
insufficient. The ALJ must provide a “discussion of the evidence” and
an “explanation of reasoning” for his conclusion sufficient to enable
meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d
501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ
particular “magic” words: “Burnett does not require the ALJ to use
particular language or adhere to a particular format in conducting his
analysis.” Jones, 364 F.3d at 505.
Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
Thus, in practice ours is a twofold task. We must evaluate the substance of
the ALJ’s decision under a deferential standard of review, but we must also give
that decision careful scrutiny to ensure that the rationale for the ALJ’s actions is
sufficiently articulated to permit meaningful judicial review.
B.

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

To receive benefits under the Social Security Act by reason of disability, a
claimant must demonstrate an inability to “engage in any substantial gainful
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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). To
satisfy this requirement, a claimant must have a severe physical or mental
impairment that makes it impossible to do his or her previous work or any other
substantial gainful activity that exists in the national economy.

42 U.S.C.

§423(d)(2)(A); 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 contributed to the insurance program, is under retirement age, and
became disabled prior to the date on which he or she was last insured. 42 U.S.C.
§423(a); 20 C.F.R. §404.131(a).
In making this determination at the administrative level, the ALJ follows a
five-step sequential evaluation process.

20 C.F.R. §§404.1520(a), 416.920(a).

Under this process, the ALJ must sequentially determine: (1) whether the claimant
is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment; (3) whether the claimant’s impairment meets or equals a listed
impairment; (4) whether the claimant is able to do his or her past relevant work;
and (5) whether the claimant is able to do any other work, considering his or her
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age, education, work experience and residual functional capacity (“RFC”). 20
C.F.R. §§404.1520(a)(4), 416.920(a)(4).
Between Steps 3 and 4, the ALJ must also assess a claimant’s residual
functional capacity (RFC). RFC is defined as “that which an individual is still able
to do despite the limitations caused by his or her impairment(s).” Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see
also 20 C.F.R. §§404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1).

In

making this assessment, the ALJ considers all of the claimant’s medically
determinable impairments, including any non-severe impairments identified by the
ALJ at step two of his or her analysis. 20 C.F.R. §§404.1545(a)(2), 416.945(a)(2).
There is an undeniable medical aspect to an RFC determination, since that
determination entails an assessment of what work the claimant can do given the
physical limitations that the claimant experiences. Yet, when considering the role
and necessity of medical opinion evidence in making this determination, courts
have followed several different paths. Some courts emphasize the importance of
medical opinion support for an RFC determination and have suggested that
“[r]arely can a decision be made regarding a claimant's residual functional capacity
without an assessment from a physician regarding the functional abilities of the
claimant.” Biller v. Acting Comm'r of Soc. Sec., 962 F. Supp. 2d 761, 778–79
15

(W.D. Pa. 2013) (quoting Gormont v. Astrue, Civ. No. 11–2145, 2013 WL 791455
at *7 (M.D. Pa. Mar. 4, 2013)). In other instances, it has been held that: “There is
no legal requirement that a physician have made the particular findings that an ALJ
adopts in the course of determining an RFC.” Titterington v. Barnhart, 174 F.
App'x 6, 11 (3d Cir. 2006). Further, courts have held in cases where there is no
evidence of any credible medical opinion supporting a claimant’s allegations of
disability that “the proposition that an ALJ must always base his RFC on a medical
opinion from a physician is misguided.” Cummings v. Colvin, 129 F. Supp. 3d
209, 214–15 (W.D. Pa. 2015).
These seemingly discordant legal propositions can be reconciled by
evaluation of the factual context of these decisions. Those cases which emphasize
the importance of medical opinion support for an RFC assessment typically arise in
the factual setting where a well-supported medical source has opined regarding
limitations which would support a disability claim, but an ALJ has rejected the
medical opinion which supported a disability determination based upon a lay
assessment of other evidence. In this setting, these cases simply restate the
commonplace idea that medical opinions are entitled to careful consideration when
making a disability determination, particularly when those opinions support a
finding of disability. In contrast, when an ALJ is relying upon other evidence, such
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as contrasting clinical or opinion evidence or testimony regarding the claimant’s
activities of daily living, to fashion an RFC courts have adopted a more pragmatic
view and have sustained the ALJ’s exercise of independent judgment based upon
all of the facts and evidence. See Titterington v. Barnhart, 174 F. App'x 6, 11 (3d
Cir. 2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D. Pa. 2015). In
either event, once the ALJ has made this determination, our review of the ALJ's
assessment of the plaintiff's RFC is deferential, and that RFC assessment will not
be set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d
113, 129 (3d Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017
WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted
sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa.
Apr. 21, 2017); Rathbun v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at
*6 (M.D. Pa. Mar. 12, 2018), report and recommendation adopted, No. 3:17-CV301, 2018 WL 1479366 (M.D. Pa. Mar. 27, 2018).
At Steps 1 through 4, the claimant bears the initial burden of demonstrating
the existence of a medically determinable impairment that prevents him or her in
engaging in any of his or her past relevant work. 42 U.S.C. §423(d)(5); 42 U.S.C.

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§1382c(a)(3)(H)(i)(incorporating 42 U.S.C. §423(d)(5) by reference); 20 C.F.R.
§§404.1512, 416.912;2 Mason, 994 F.2d at 1064.
Once this burden has been met by the claimant, it shifts to the Commissioner
at Step 5 to show that jobs exist in significant number in the national economy that
the claimant could perform that are consistent with the claimant’s age, education,
work experience and RFC. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d
at 1064.
The ALJ’s disability determination must also meet certain basic substantive
requisites. Most significant among these legal benchmarks is a requirement that the
ALJ adequately explain the legal and factual basis for this disability determination.
Thus, in order to facilitate review of the decision under the substantial evidence
standard, the ALJ's decision must be accompanied by "a clear and satisfactory
explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate
2

New versions of 20 C.F.R. §404.1512, and 20 C.F.R. §416.912 were published at
about the time the ALJ issued the decision in this case. After reviewing these
changes, we note that they do not materially alter the proposition that a claimant
bears the initial burden of demonstrating that he or she cannot engage in other
work, or that the Commissioner must provide evidence about the existence of other
work in the national economy that the claimant can perform. See 20 C.F.R.
§404.1512(a)(1)(effective Mar. 27, 2017); 20 C.F.R. §404.1512(b)(3)(effective
Mar. 27, 2017); 20 C.F.R. §416.912(a)(1)(effective Mar. 27, 2017); 20 C.F.R.
§416.912(b)(3)(effective Mar. 27, 2017).
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which evidence was accepted, which evidence was rejected, and the reasons for
rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in
his decision which evidence he has rejected and which he is relying on as the basis
for his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir.
1999).
C.

Legal Benchmarks for the ALJ’s Assessment of Medical Opinion
Evidence

The Commissioner’s regulations also set standards for the evaluation of
medical evidence, and define medical opinions as “statements from physicians and
psychologists or other acceptable medical sources that reflect judgments about the
nature and severity of [a claimant’s] impairment(s), including [a claimant’s]
symptoms, diagnosis and prognosis, what [a claimant] can still do despite
impairments(s), and [a claimant’s] physical or mental restrictions.” 20 C.F.R.
§404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate every
medical opinion received. 20 C.F.R. §404.1527(c).
In deciding what weight to accord to competing medical opinions and
evidence, the ALJ is guided by factors outlined in 20 C.F.R. §404.1527(c). “The
regulations provide progressively more rigorous tests for weighing opinions as the
ties between the source of the opinion and the individual become weaker.” SSR
96-6p, 1996 WL 374180 at *2. Treating sources have the closest ties to the
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claimant, and therefore their opinions generally entitled to more weight. See 20
C.F.R. §404.1527(c)(2)(“Generally, we give more weight to opinions from your
treating sources...”); 20 C.F.R. §404.1502 (defining treating source). Under some
circumstances, the medical opinion of a treating source may even be entitled to
controlling weight. 20 C.F.R. §§04.1527(c)(2); see also SSR 96-2p, 1996 WL
374188 (explaining that controlling weight may be given to a treating source’s
medical opinion only where it is well-supported by medically acceptable clinical
and laboratory diagnostic techniques, and it is not inconsistent with the other
substantial evidence in the case record).
Where no medical source opinion is entitled to controlling weight, the
Commissioner’s regulations direct the ALJ to consider the following factors, where
applicable, in deciding the weight given to any non-controlling medical opinions:
length of the treatment relationship and frequency of examination; nature and
extent of the treatment relationship; the extent to which the source presented
relevant evidence to support his or her medical opinion, and the extent to which the
basis for the source’s conclusions were explained; the extent to which the source’s
opinion is consistent with the record as a whole; whether the source is a specialist;
and, any other factors brought to the ALJ’s attention. 20 C.F.R. §404.1527(c).

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At the initial level of administrative review, State agency medical and
psychological consultants may act as adjudicators. See SSR 96-5p, 1996 WL
374183 at *4. As such, they do not express opinions; they make findings of fact
that become part of the determination. Id. However, 20 C.F.R. §404.1527(e)
provides that at the ALJ and Appeals Council levels of the administrative review
process, findings by nonexamining State agency medical and psychological
consultants should be evaluated as medical opinion evidence. Therefore, ALJs
must consider these opinions as expert opinion evidence by nonexamining
physicians and must address these opinions in their decisions. SSR 96-5p, 1996
WL 374183 at *6. Opinions by State agency consultants can be given weight “only
insofar as they are supported by evidence in the case record.” SSR 96-6p, 1996
WL 374180 at *2. In appropriate circumstances, opinions from nonexamining
State agency medical consultants may be entitled to greater weight than the
opinions of treating or examining sources. Id. at *3.
Oftentimes, as in this case, an ALJ must evaluate medical opinions and
records tendered by both treating and non-treating sources. Judicial review of this
aspect of ALJ decision-making is guided by several settled legal tenets. First, when
presented with a disputed factual record, it is well-established that “[t]he ALJ – not
treating or examining physicians or State agency consultants – must make the
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ultimate disability and RFC determinations.” Chandler v. Comm’r of Soc. Sec.,
667 F.3d 356, 361 (3d Cir. 2011). Thus, “[w]here, . . . , the opinion of a treating
physician conflicts with that of a non-treating, non-examining physician, the ALJ
may choose whom to credit but ‘cannot reject evidence for no reason or for the
wrong reason.’” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting
Mason, 994 F.2d at 1066). Therefore, provided that the decision is accompanied by
an adequate, articulated rationale, it is the province and the duty of the ALJ to
choose which medical opinions and evidence deserve greater weight.
On this score, as we have also noted:
[T]reating physician opinions do not control this determination. State
agency doctors are also entitled to have their opinions given careful
consideration. As the court of appeals has observed:
“[t]he law is clear ... that the opinion of a treating
physician does not bind the ALJ on the issue of
functional capacity,” Brown v. Astrue, 649 F.3d 193, 197
n. 2 (3d Cir. 2011).State agent opinions merit significant
consideration as well. See SSR 96-6p (“Because State
agency medical and psychological consultants ... are
experts in the Social Security disability programs ... 20
C.F.R. §§ 404.1527(f) and 416.927(f) require [ALJs] ...
to consider their findings of fact about the nature and
severity of an individual's impairment(s)....”). Chandler
v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.
2011).
Deiter v. Berryhill, No. 3:16-CV-2146, 2018 WL 1322067, at *6 (M.D. Pa. Feb. 5,
2018), report and recommendation adopted, No. 3:16-CV-2146, 2018 WL 1315655
22

(M.D. Pa. Mar. 14, 2018). See Shoemaker v. Colvin, No. 3:16-CV-2304, 2018 WL
3245011, at *10 (M.D. Pa. Apr. 5, 2018), report and recommendation adopted sub
nom. Shoemaker v. Berryhill, No. 3:16-CV-2304, 2018 WL 3239903 (M.D. Pa.
July 3, 2018).
Further, in making this assessment of medical evidence:
An ALJ is [also] entitled generally to credit parts of an opinion
without crediting the entire opinion. See Thackara v. Colvin, No.
1:14–CV–00158–GBC, 2015 WL 1295956, at *5 (M.D.Pa. Mar. 23,
2015); Turner v. Colvin, 964 F. Supp. 2d 21, 29 (D.D.C. 2013)
(agreeing that “SSR 96–2p does not prohibit the ALJ from crediting
some parts of a treating source's opinion and rejecting other
portions”); Connors v. Astrue, No. 10–CV–197–PB, 2011 WL
2359055, at *9 (D.N.H. June 10, 2011). It follows that an ALJ can
give partial credit to all medical opinions and can formulate an RFC
based on different parts from the different medical opinions. See e.g.,
Thackara v. Colvin, No. 1:14–CV–00158–GBC, 2015 WL 1295956,
at *5 (M.D. Pa. Mar. 23, 2015).
Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016).
D.

Legal Benchmarks for the ALJ’s Assessment of a
Claimant’s Alleged Symptoms

The interplay between the deferential substantive standard of review that
governs Social Security appeals, and the requirement that courts carefully assess
whether an ALJ has met the standards of articulation required by law, is also
illustrated by those cases which consider analysis of a claimant’s reported pain.

23

When evaluating lay testimony regarding a claimant’s reported degree of pain and
disability, we are reminded that:
[T]he ALJ must necessarily make certain credibility determinations,
and this Court defers to the ALJ's assessment of credibility. See Diaz
v. Comm'r, 577 F.3d 500, 506 (3d Cir.2009) (“In determining whether
there is substantial evidence to support an administrative law judge's
decision, we owe deference to his evaluation of the evidence [and]
assessment of the credibility of witnesses....”). However, the ALJ
must specifically identify and explain what evidence he found not
credible and why he found it not credible. Adorno v. Shalala, 40 F.3d
43, 48 (3d Cir.1994) (citing Stewart v. Sec'y of Health, Education and
Welfare, 714 F.2d 287, 290 (3d Cir.1983)); see also Stout v. Comm'r,
454 F.3d 1050, 1054 (9th Cir.2006) (stating that an ALJ is required to
provide “specific reasons for rejecting lay testimony”). An ALJ
cannot reject evidence for an incorrect or unsupported reason. Ray v.
Astrue, 649 F.Supp.2d 391, 402 (E.D.Pa.2009) (quoting Mason v.
Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)).
Zirnsak v. Colvin, 777 F.3d 607, 612–13 (3d Cir. 2014).
Yet, it is also clear that:
Great weight is given to a claimant's subjective testimony only when
it is supported by competent medical evidence. Dobrowolsky v.
Califano, 606 F.2d 403, 409 (3d Cir. 1979); accord Snedeker v.
Comm'r of Soc. Sec., 244 Fed.Appx. 470, 474 (3d Cir. 2007). An ALJ
may reject a claimant's subjective testimony that is not found credible
so long as there is an explanation for the rejection of the testimony.
Social Security Ruling (“SSR”) 96–7p; Schaudeck v. Comm'r of
Social Security, 181 F.3d 429, 433 (3d Cir. 1999). Where an ALJ
finds that there is an underlying medically determinable physical or
mental impairment that could reasonably be expected to produce the
individual's pain or other symptoms, however, the severity of which is
not substantiated by objective medical evidence, the ALJ must make a
finding on the credibility of the individual's statements based on a
consideration of the entire case record.
24

McKean v. Colvin, 150 F. Supp. 3d 406, 415–16 (M.D. Pa. 2015)(footnotes
omitted). Thus, we are instructed to review an ALJ’s evaluation of a claimant’s
subjective reports of pain under a standard of review which is deferential with
respect to the ALJ’s well-articulated findings, but imposes a duty of clear
articulation upon the ALJ so that we may conduct meaningful review of the ALJ’s
conclusions.
In the same fashion that medical opinion evidence is evaluated, the Social
Security Rulings and Regulations provide a framework under which the severity of
a claimant's reported symptoms are to be considered. 20 C.F.R. §§ 404.1529,
416.929; SSR 16–3p. It is important to note that though the “statements of the
individual concerning his or her symptoms must be carefully considered, the ALJ
is not required to credit them.” Chandler v. Comm’r of Soc. Sec., 667 F.3d 356,
363 (3d. Cir. 2011) (referencing 20 C.F.R. §404.1529(a) (“statements about your
pain or other symptoms will not alone establish that you are disabled.”). It is wellsettled in the Third Circuit that “[a]llegations of pain and other subjective
symptoms must be supported by objective medical evidence.” Hantraft v. Apfel,
181 F.3d 358, 362 (3d Cir. 1999) (referring to 20 C.F.R. §404.1529). When
evaluating a claimant’s symptoms, the ALJ must follow a two-step process in
25

which the ALJ resolves whether a medically determinable impairment could be the
cause of the symptoms alleged by the claimant, and subsequently must evaluate the
alleged symptoms in consideration of the record as a whole. SSR 16-3p.
First, symptoms, such as pain or fatigue, will only be considered to affect a
claimant's ability to perform work activities if such symptoms result from an
underlying physical or mental impairment that has been demonstrated to exist by
medical signs or laboratory findings. 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR
16–3p. During the second step of this credibility assessment, the ALJ must
determine whether the claimant's statements about the intensity, persistence or
functionally limiting effects of his or her symptoms are substantiated based on the
ALJ's evaluation of the entire case record. 20 C.F.R. § 404.1529(c), 416.929(c);
SSR 16–3p. This includes, but is not limited to: medical signs and laboratory
findings, diagnosis and other medical opinions provided by treating or examining
sources, and other medical sources, as well as information concerning the
claimant's symptoms and how they affect his or her ability to work. Id. The Social
Security Administration has recognized that individuals may experience their
symptoms differently and may be limited by their symptoms to a greater or lesser
extent than other individuals with the same medical impairments, signs, and
laboratory findings. SSR 16–3p.
26

Thus, to assist in the evaluation of a claimant's subjective symptoms, the
Social Security Regulations identify seven factors which may be relevant to the
assessment of the severity or limiting effects of a claimant's impairment based on a
claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). These factors
include: activities of daily living; the location, duration, frequency, and intensity of
the claimant's symptoms; precipitating and aggravating factors; the type, dosage,
effectiveness, and side effects of any medication the claimant takes or has taken to
alleviate his or her symptoms; treatment, other than medication that a claimant has
received for relief; any measures the claimant has used to relieve his or her
symptoms; and, any other factors concerning the claimant's functional limitations
and restrictions. Id.; see George v. Colvin, No. 4:13–CV–2803, 2014 WL 5449706,
at *4 (M.D.Pa. Oct. 24, 2014); Martinez v. Colvin, No. 3:14-CV-1090, 2015 WL
5781202, at *8–9 (M.D. Pa. Sept. 30, 2015).
E.

The ALJ’s Decision in this Case is Supported by Substantial
Evidence

As we have noted, in this case Boylstein attacks the ALJ’s decision on three
grounds, arguing that: (1) the ALJ improperly assigned little weight to the treating
source opinion of Dr. Greevy; (2) the ALJ’s residual functional capacity
assessment is deficient because it is not fully supported in every respect by a
medical opinion, thus creating an “evidentiary deficit” in Boylstein’s view; and (3)
27

the ALJ erred in partially discounting Boylstein’s testimony regarding the severity
and persistence of his symptoms.
Turning first to Boylstein’s argument that the ALJ erred in discounting the
opinion of Boylstein’s treating source, Dr. Greevy, in this case the ALJ was
presented with two competing medical opinions, Dr. Greevy’s opinion and the
opinion of the state agency consulting, examining expert, Dr. DeWulf. Reviewing
these two opinions, and considering them in light of the clinical evidence, as well
as Boylstein’s reported activities of daily living, the ALJ found that Dr. DeWulf’s
opinion drew greater support from the objective evidence than did the more
extreme and limiting view expressed by Dr. Greevy.
The ALJ is permitted, and is often required to make such judgments.
Further, when an ALJ assesses competing medical opinions:
“[t]he law is clear ... that the opinion of a treating physician does not
bind the ALJ on the issue of functional capacity,” Brown v. Astrue,
649 F.3d 193, 197 n. 2 (3d Cir. 2011).State agent opinions merit
significant consideration as well. See SSR 96-6p (“Because State
agency medical and psychological consultants ... are experts in the
Social Security disability programs ... 20 C.F.R. §§ 404.1527(f) and
416.927(f) require [ALJs] ... to consider their findings of fact about
the nature and severity of an individual's impairment(s)....”). Chandler
v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).
Deiter v. Berryhill, No. 3:16-CV-2146, 2018 WL 1322067, at *6 (M.D. Pa. Feb. 5,
2018), report and recommendation adopted, No. 3:16-CV-2146, 2018 WL 1315655
28

(M.D. Pa. Mar. 14, 2018). Thus, the ALJ was completely entitled to choose to
follow the opinion of a state agency consulting expert, particularly when that
opinion was more congruent with the objective medical evidence and with the
proof as it related to Boylstein’s daily activities. There was no error here.
Moreover, in determining the weight to be given to a treating source
opinion, it is also well-settled that an ALJ may discount that opinion when it
conflicts with other objective tests or examination results. Johnson v. Comm'r of
Soc. Sec., 529 F.3d 198, 202–03 (3d Cir. 2008). Likewise, an ALJ may conclude
that discrepancies between the treating source's medical opinion, and the doctor's
actual treatment notes, justifies giving a treating source opinion little weight in a
disability analysis. Torres v. Barnhart, 139 F.App’x. 411, 415 (3d Cir. 2005).
Finally, “an opinion from a treating source about what a claimant can still do
which would seem to be well-supported by the objective findings would not be
entitled to controlling weight if there was other substantial evidence that the
claimant engaged in activities that were inconsistent with the opinion.” Tilton v.
Colvin, 184 F. Supp. 3d 135, 145 (M.D. Pa. 2016). See Matcheson v. Colvin, No.
1:16-CV-671, 2017 WL 3910778, at *6 (M.D. Pa. Aug. 8, 2017), report and
recommendation adopted sub nom. Matcheson v. Berryhill, No. 1:16-CV-671,
2017 WL 3892054 (M.D. Pa. Sept. 6, 2017). Here, the ALJ specifically concluded
29

that the very restrictive opinions authored by Dr. Greevy were inconsistent with
other clinical records and treatment notes, and were contradicted by Boylstein’s
own activities of daily living. Substantial evidence supported the ALJ’s findings in
each of these regards. Accordingly, this decision to give less weight to Dr.
Greevy’s opinion was appropriate and may not now be disturbed on appeal.
In addition, Boylstein argues that there was an “evidentiary deficit” in the
ALJ’s RFC assessment, because the ALJ fashioned an RFC which was based upon
a determination that Dr. Greevy’s opinion deserved little weight, but only afforded
partial weight to the opinion of Dr. DeWulf. Thus, the premise underlying this
argument is the idea that an ALJ’s residual functional capacity assessment must be
accompanied in every instance by a medical opinion, and the failure to cite a
medical opinion supporting every aspect of the RFC creates a fatal evidentiary
deficit. We disagree with this premise, which runs contrary to case law which
recognizes that: “There is no legal requirement that a physician have made the
particular findings that an ALJ adopts in the course of determining an RFC.”
Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006). Thus, “the proposition
that an ALJ must always base his RFC on a medical opinion from a physician is
misguided.” Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D. Pa. 2015).
Instead, in fashioning an RFC the ALJ may ALJ is rely upon other evidence such
30

as contrasting clinical or opinion evidence or testimony regarding the claimant’s
activities of daily living, and courts have sustained the ALJ’s exercise of
independent judgment based upon all of the facts and evidence. See Titterington v.
Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006); Cummings v. Colvin, 129 F. Supp. 3d
209, 214–15 (W.D. Pa. 2015).
In this case, the RFC formulated by the ALJ reflected a synthesis of the
contrasting medical opinions, the clinical records, and Boylstein’s own proven
capabilities as reflected by his self-reported activities of daily living. Each aspect
of this RFC drew evidentiary support from these various sources, and the basis for
the ALJ’s assessment was adequately explained in the decision denying
Boylstein’s application for benefits. Mindful of the fact that our review of the
ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment
will not be set aside if it is supported by substantial evidence, we conclude that
there are no grounds to set aside the residual functional capacity assessment made
here, which was completely consistent with Boylstein’s own description of his
capabilities.

Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also

Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar.
29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No.
3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun v. Berryhill,
31

No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report
and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa.
Mar. 27, 2018).
Finally, the ALJ’s symptom evaluation and credibility determinations, which
found that Boylstein’s testimony was only partially credible, are also supported by
substantial evidence. In this regard, we are cautioned that we should “defer[] to the
ALJ's assessment of credibility” provided that the ALJ “specifically identif[ies]
and explain[s] what evidence he found not credible and why he found it not
credible.” Zirnsak v. Colvin, 777 F.3d 607, 612–13 (3d Cir. 2014). In this case, the
ALJ explained that Boylstein’s testimony concerning the severity of his symptoms
was not entirely credible because it conflicted with objective clinical results, the
state agency doctor’s expert opinion, and Boylstein’s activities of daily living.
Given the deference owed to this credibility determination, that decision—which is
supported by substantial evidence—also should not be disturbed on appeal.
In sum, the ALJ’s assessment of the evidence in this case complied with the
dictates of the law and was supported by substantial evidence. This is all that the
law requires, and all that a claimant like Boylstein can demand in a disability
proceeding. Thus, notwithstanding the argument that this evidence could have been
further explained, or might have been viewed in a way which would have also
32

supported a different finding, we are obliged to affirm this ruling once we find that
it is “supported by substantial evidence, ‘even [where] this court acting de novo
might have reached a different conclusion.’” Monsour Med. Ctr. v. Heckler, 806
F.2d 1185, 1190–91 (3d Cir. 1986) (quoting Hunter Douglas, Inc. v. NLRB, 804
F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential standard of
review that applies to appeals of Social Security disability determinations we
conclude that substantial evidence supported the ALJ’s evaluation of this case.
Therefore, we will affirm this decision, direct that judgment be entered in favor of
the defendant, and instruct the clerk to close this case.
IV.

Conclusion
Accordingly, for the foregoing reasons, the decision of the Commissioner is

AFFIRMED, and the clerk is directed that judgment be entered in favor of the
defendant, and that this case be closed.
An appropriate order follows.
So ordered this16th day of November, 2018.

s/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

33