REMALEY v. SAUL
OPINION and ORDER denying 12 Motion for Summary Judgment; granting 16 Motion for Summary Judgment. The decision of the Commissioner is hereby affirmed. Signed by Judge Donetta W. Ambrose on 3/31/2021. (sps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CRAIG EDWIN REMALEY,
ANDREW M. SAUL, Commissioner of
Civil Action No. 2:19-1493
AMBROSE, Senior District Judge
ORDER OF COURT
Pending before the Court are Cross-Motions for Summary Judgment. [ECF Nos. 12 and
16]. Both parties have filed Briefs in Support of their Motions [ECF Nos. 13 and 19], and Plaintiff
filed a Reply Brief [ECF No. 21]. After careful consideration of the submissions of the parties, and
based on my Opinion set forth below, I am denying Plaintiff’s Motion for Summary Judgment [ECF
No. 12] and granting Defendant’s Motion for Summary Judgment. [ECF No. 16].
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (the “Act”) and for Supplemental Security Income (“SSI”)
under Title XVI of the Act. Plaintiff applied for DIB and SSI on or about August 18, 2016. [ECF
No. 10-8 (Exs. 1D, 2D)]. Plaintiff alleged that since June 15, 2016,1 he had been disabled due to
Plaintiff’s alleged onset date was amended at the administrative hearing at his request. Originally, Plaintiff
fibromyalgia, anxiety, depression, and gout. [ECF No. 10-9 (Ex. 2E); ECF No. 10-3, at 37].
Administrative Law Judge (“ALJ”) Daniel F. Cusick held a hearing on July 6, 2018, at which
Plaintiff was represented by counsel. [ECF No. 10-4]. Plaintiff appeared at the hearing and
testified on his own behalf. Id. A vocational expert also was present at the hearing and testified.
Id. at 92-101. In a decision dated October 31, 2018, the ALJ found that jobs existed in significant
numbers in the national economy that Plaintiff could perform and, therefore, that Plaintiff was not
disabled under the Act. [ECF No. 10-3, at 37-50]. Plaintiff requested review of the ALJ’s
determination by the Appeals Council, and the Appeals Council denied Plaintiff’s request for
review. [ECF No. 10-2]. Having exhausted all of his administrative remedies, Plaintiff filed this
The parties have filed Cross-Motions for Summary Judgment. [ECF Nos. 12 and 16]. The
issues are now ripe for my review.
STANDARD OF REVIEW
The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner’s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Regardless of “the meaning of ‘substantial’ in other contexts, the threshold for such
evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (U.S. 2019).
Substantial evidence has been defined as “more than a mere scintilla.” Ventura v. Shalala, 55
F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “It
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. The Commissioner’s findings of
fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g); Dobrowolsky v.
indicated an onset date of August 16, 2016. [ECF Nos. 10-8, Exs. 1D, 2D, 11D; 10-3, at 37].
Califano, 606 F.2d 403, 406 (3d Cir. 1979). A district court cannot conduct a de novo review of
the Commissioner’s decision or re-weigh the evidence of record. Palmer v. Apfel, 995 F. Supp.
549, 552 (E.D. Pa. 1998). Where the ALJ's findings of fact are supported by substantial evidence,
a court is bound by those findings, even if the court would have decided the factual inquiry
differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). To determine whether a finding is
supported by substantial evidence, however, the district court must review the record as a whole.
See 5 U.S.C. § 706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. § 1382(a)(3)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use when
evaluating the disabled status of each claimant. 20 C.F.R. §§ 404.1520, 416.920. The ALJ must
determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,
whether it meets or equals the criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant’s impairments
prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he can perform any other work which exists in the
national economy, in light of his age, education, work experience and residual functional capacity.
20 C.F.R. §§ 404.1520, 416.920. The claimant carries the initial burden of demonstrating by
medical evidence that he is unable to return to his previous employment (steps 1-4).
Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof shifts to
the Commissioner to show that the claimant can engage in alternative substantial gainful activity
(step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the decision
with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745 F.2d 210,
221 (3d Cir. 1984).
WHETHER THE ALJ IMPROPERLY DISREGARDED TREATING SOURCE EVIDENCE
REGARDING PLAINTIFF’S ABILITY TO WALK
Plaintiff argues that the ALJ erroneously failed to reconcile his conclusion that Plaintiff was
able to occasionally climb ramps and stairs with the May 5, 2017 opinion of “treating source”,
Certified Registered Nurse Practitioner, Amy Lhote, that Plaintiff was unable to ambulate
effectively, i.e., that Plaintiff was unable to walk a block at a reasonable pace on rough or uneven
surfaces, unable to walk enough to shop or bank, and unable to climb a few steps at a reasonable
pace with the use of a single handrail. [ECF No. 13, at 9 (citing ECF No. 10-3, at 43-44 and ECF
No.10-17 (Ex. 10F)]. This argument is without merit.
As an initial matter, as Defendant notes and the ALJ appropriately acknowledged, CNP
Lhote was not considered an “acceptable medical source” under the regulations in effect at the
time Plaintiff filed his claim. See 20 C.F.R. §§ 404.1502(a); 416.902(a); see also ECF No. 10-3,
at 47 (citing Ex. 10F).2 Only an “acceptable medical source” can be classified as a treating source
or provide a medical opinion as defined in the regulations. See 20 C.F.R. §§ 404.1521, 416.921,
404.1527(a)(1), (2), 416.927(a)(1), (2). Thus, CNP Lhote’s report is not a treating source opinion
entitled to controlling weight.
Moreover, contrary to Plaintiff’s assertions, the ALJ did not fail to explain why he
disregarded CNP Lhote’s statements concerning Plaintiff’s ability to walk. In assessing a medical
Although these regulations recently were amended to include licensed advanced practice registered
nurses as acceptable medical sources within their licensed scope of practice, these amendments apply
only to claims filed on or after March 27, 2017, and, thus, do not apply to Plaintiff’s claims here. See 20
C.F.R. §§ 404.1502(a)(7); 416.902(a)(7).
source statement from a non-acceptable medical source, the ALJ “generally should explain the
weight given” to the statement “or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's
reasoning, when such opinions may have an effect on the outcome of the case.” 20 C.F.R. §§
404.1527(f)(2); 416.927(f)(2). Here, the ALJ did just that. Specifically, the ALJ explained that Dr.
Lhote’s medical source statement was given “little weight” because it was inconsistent with the
medical evidence of record discussed elsewhere in the opinion; it was made by a non-acceptable
medical source unfamiliar with the Social Security disability program and its evidentiary
requirements; it was a check-box form unsupported by detailed explanations; and it was not
consistent with the DDS opinions or Plaintiff’s daily activities. [ECF No. 10-2, at 47 (citing Ex.
10F)]. These are appropriate reasons for discrediting a medical statement. The fact that the ALJ
did not cite CNP Lhote by name does not alter this conclusion, since the ALJ clearly identified
CNP Lhote’s medical source statement by exhibit number.
In addition, the ALJ supported his finding that Plaintiff could occasionally climb ramps or
stairs with substantial evidence. Among other things, the ALJ gave great weight to the opinion of
the state agency medical consultant that, inter alia, Plaintiff could perform a less than full range
of light work with standing/walking limited to two hours and occasional posturals, including
occasional climbing of ramps and stairs. [ECF No. 10-2, at 47 (citing Exs. 1A, 2A)]. The ALJ also
cited to Plaintiff’s medical records reflecting conservative treatment, Plaintiff’s noncompliance with
treatment, and Plaintiff’s daily activities in support of his RFC findings. See id. at 43-47 (citing
Exs. 3E, 9D, 1F, 2F, 3F, 6F, 13F, 14F, 15F, 20F, and Hearing Testimony). For this reason as
well, Plaintiff’s argument fails.
WHETHER THE ALJ ERRONEOUSLY FAILED
IMPAIRMENTS AT STEP TWO OF THE EVALUATION
As set forth in 20 C.F.R. §§ 404.1521(a) and 416.921(a), an impairment or combination of
impairments3 is not severe if it does not significantly limit a claimant’s physical or mental ability
to do basic work activities. The regulations define basic work activities as the abilities or aptitudes
necessary to do most jobs. 20 C.F.R. §§ 404.1521(b), 416.921(b). Thus, an impairment is not
severe if the evidence establishes only a slight abnormality that has no more than a minimal effect
on an individual’s ability to work. Newell, 347 F.3d at 546; Mays v. Barnhart, 78 F. App’x 808, 811
(3d Cir. 2003); S.S.R. 85-28. Although the Court of Appeals for the Third Circuit has commented
that the Commissioner’s determination to deny an applicant’s request for benefits at step two
should be reviewed with close scrutiny, it also has made clear that it does not suggest that a
reviewing court apply a more stringent standard of review in such cases. McCrea v. Comm’r of
Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). Rather, “[t]he Commissioner’s denial at step two,
like one made at any other step in the sequential analysis, is to be upheld if supported by
substantial evidence on the record as a whole.” Id. at 360-61.
At step two in this case, the ALJ found that Plaintiff had severe impairments, including
fibromyalgia, gout, celiac disease, obesity, depression, and anxiety. [ECF No. 10-2, at 40].
Plaintiff, however, argues that the ALJ failed to address his thyroid disease, blood pressure
problems, arthritis, and fatigue, as severe or non-severe impairments at step two of the analysis
requiring remand. [ECF No. 13, at 9-12; ECF No. 21]. I disagree.
To the extent Plaintiff suggests the ALJ failed to consider his thyroid disease,
hypertension, arthritis, and fatigue at all at step two, that suggestion is misplaced. Although the
ALJ’s opinion does not list these conditions by name, the ALJ plainly states that “all other
impairments, other than those enumerated above, alleged and found in the record, are non-
A medically determinable impairment “must result from anatomical, physiological, or psychological
abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques . . .
[and] must be established by objective medical evidence.” 20 C.F.R. §§ 404.1521, 416.921. A mere
diagnosis or subjective statement of symptoms alone is insufficient to demonstrate a medically
determinable impairment for social security purposes. Id.
severe, as they have been responsive to treatment, cause no more than minimal vocationallyrelevant limitations, and/or have not lasted or are expected to last at a ‘severe’ level for a
continuous period of 12 months or expected to result in death.” [ECF No. 10-2, at 40 (emphasis
added)]. The ALJ further noted that he considered both Plaintiff’s severe and non-severe
impairments when formulating his RFC. Id.
Plaintiff likewise has failed to demonstrate that the ALJ erred in making this finding. Again,
a mere diagnosis is insufficient to show severity. See Salles v. Comm’r of Soc. Sec., 229 F. App’x
140, 144 (3d Cir. 2007). Rather, the Plaintiff must show that the claimed impairments significantly
limit his ability to do basic work activities or impair his capacity to cope with the mental demands
of working. See id. Plaintiff did not list hypertension, thyroid condition, or arthritis (other than gout)
as disabling impairments in his application and has not pointed to any vocationally relevant
functional limitations related to those conditions that meet the severity standard and/or that the
ALJ did not consider at step two or in the RFC analysis. Additionally, with respect to “fatigue,” I
agree with Defendant that Plaintiff is conflating a medically determinable impairment with a
symptom thereof. [ECF No. 19, at 12-13 (citing S.S.R. 96-4p, 1996 WL 374187, at *1); see also
20 C.F.R. §§ 404.1529, 416.929]. In any event, the ALJ considered Plaintiff’s fatigue as a
symptom of his fibromyalgia. [ECF No. 10-2, at 43-44].
In addition, and in any event, the ALJ did not deny Plaintiff’s application for benefits at step
two of the analysis. Rather, the ALJ found in Plaintiff’s favor at step two when he concluded that
Plaintiff’s fibromyalgia, gout, celiac disease, obesity, depression, and anxiety were severe
impairments. [ECF No. 10-2, at 40]. The ALJ ruled against Plaintiff later in the sequential
evaluation process, after concluding that his residual functional capacity was sufficient to enable
him to perform jobs existing in the national economy. Id. at 48-49. Because the ALJ found in
Plaintiff’s favor at step two and proceeded with the sequential analysis, even if he had erroneously
concluded that the above impairments were not severe, any such error was harmless. See Salles,
229 F. App’x at 144-45 & n.2 (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).
WHETHER THE ALJ FAILED TO PROPERLY ADDRESS THE LIMITATIONS
REGARDING PLAINTIFF’S FIBROMYALGIA
Plaintiff next argues that the ALJ failed to properly address the limitations regarding his
fibromyalgia as required by SSR 12-2p, particularly in regard to Plaintiff’s number of tender points.
[ECF No. 13, at 12-15]. Plaintiff contends that the evidence regarding fibromyalgia dictates a
finding of disability as of Plaintiff’s alleged onset date or that the case be remanded for the taking
of testimony by a Medical Expert. See id. After careful consideration, I find that remand is not
warranted on this issue.
Social Security Ruling 12-2p was designed to provide “guidance on how we develop
evidence to establish that a person has a medically determinable impairment (MDI)
of fibromyalgia (FM), and how we evaluate FM disability claims and continuing disability reviews
under titles II and XVI of the Social Security Act.” SSR 12-2p, 2012 WL 3104869 (July 25, 2012).
The regulation provides certain criteria for a finding of a medically determinable impairment
of fibromyalgia4 then states that, once an impairment is established, the ALJ engages in the five
step sequential analysis. That is, “we consider the severity of the impairment, whether the
impairment medically equals the requirements of a listed impairment, and whether the impairment
prevents the person from doing his or her past relevant work or other work that exists in significant
numbers in the national economy.” SSR 12-2p. Here, the ALJ found that Plaintiff does suffer
from fibromyalgia and that it does constitute a severe impairment. [ECF No. 10-2, at 40]. He then
SSR 12-2p provides that to establish a medically determinable impairment of fibromyalgia, a physician
must diagnosis fibromyalgia and satisfy one of two sets of criteria. Specifically, the claimant must
demonstrate a history of widespread pain, at least 11 positive tender points on physical examination, and
evidence that other disorders that could cause the symptoms or signs were excluded. In the alternative, the
claimant must demonstrate a history of widespread pain, repeated manifestations of six or
more fibromyalgia symptoms, and evidence that other disorders that could cause these symptoms were
excluded. SSR 12-2p.
proceeded to engage in the remainder of the sequential analysis. Id. at 40-49. Because the ALJ
agreed that Plaintiff’s fibromyalgia was a severe medically determinable impairment, a more
detailed discussion of Plaintiff’s tender points was unnecessary. For these reasons, I find that the
ALJ complied with SSR 12-2p. See Linke v. Berryhill, No. CV 17-937, 2018 WL 3574912, at *2–
3 (W.D. Pa. July 25, 2018) (citing cases).
To the extent Plaintiff further alleges that the ALJ erred in evaluating his fibromyalgia at
step three of the five-step analysis, that argument is unfounded. In step three of the analysis set
forth above, the ALJ must determine if the claimant’s impairment meets or is equal to one of the
impairments listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1. Jesurum v. Sec’y of Health & Human
Servs., 48 F.3d 114, 117 (3d Cir. 1995). An applicant is per se disabled if the impairment is
equivalent to a listed impairment and, thus, no further analysis is necessary. Burnett v. Comm’r,
220 F.3d 112, 119 (3d Cir. 2000). It is the plaintiff’s burden to prove a presumptively disabling
impairment under the Listings. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, in accordance with SSR 12-2p, the ALJ expressly considered Plaintiff’s fibromyalgia
in his listings analysis at step three, providing as follows:
With respect to the claimant’s fibromyalgia, it cannot meet a listing because it is
not a listed impairment. The undersigned has considered the entire adult Listings
because fibromyalgia may cause symptoms or complications that are similar to
other impairments considered under the Listing of Impairments. The undersigned
finds that the claimant’s fibromyalgia does not equal a listing, or medically equal a
listing in combination with at least one other medically determinable impairment
[ECF No. 10-2, at 41]. Plaintiff’s averment that the ALJ should have expressly discussed his
fibromyalgia under Listings 14.09 or 1.02 is unpersuasive. An ALJ is not required to cite a specific
Listing at step three, and his failure to do so is not fatal provided that his development of the
record and explanation of findings in the opinion as a whole permit meaningful review of the stepthree conclusion. See Jones v. Barnhart, 364 F.3d 501, 503-05 (3d Cir. 2004); Lopez v. Comm’r
of Soc. Sec., 270 F. App’x 119, 121-22 (3d Cir. 2008).
Here, the ALJ specifically states that he considered Plaintiff’s fibromyalgia in connection
with the “entire adult Listings” and that the condition did not meet or equal any of those listings in
Plaintiff’s case. The ALJ’s step three analysis combined with his extensive consideration of the
evidence relevant to Plaintiff’s fibromyalgia elsewhere in his opinion provides more than ample
development of the record to permit meaningful review. After such review, I conclude that
substantial evidence supports the ALJ’s finding that Plaintiff’s fibromyalgia is not disabling at step
three or any other stage of the sequential analysis. See, e.g., ECF No. 10-2 (citing Exs. 1A, 2A,
2E, 3E, 9D, 1F, 2F, 3F, 5F, 6F, 13F, 14F, 15F, 16F, 20F, 21F, and Hearing Testimony). Because
the ALJ engaged in a thorough analysis of Plaintiff’s fibromyalgia supported by substantial
evidence, I find no error in this regard.
Although Plaintiff cites a list of medical records in support of his claim that fibromyalgia is
a disabling condition [ECF No. 13, at 12-15], I cannot conduct a de novo review of the
Commissioner's decision or re-weigh the evidence of record. Rather, my job is to determine
whether substantial evidence supports the ALJ's decision, which, as set forth above, it does. See
Genes v. Colvin, No. CIV.A. 14-364, 2015 WL 251048, at *4 (W.D. Pa. Jan. 20, 2015) (“The
standard of review, however, is not whether there is evidence to establish the Plaintiff's position.
Rather, the standard is whether there is substantial evidence to support the ALJ's finding.”).
Plaintiff’s alternative argument that the ALJ should have called on a “medical expert” with
respect to his fibromyalgia pursuant to SSR 12-2p, and that I should remand the case to allow for
the same, is without merit. As Plaintiff himself acknowledges, the applicable portion of SSR 122p is discretionary, stating only that the Commissioner may retain a consultative examiner to help
determine “if a person has an MDI (Medically Determinable Impairment) of FM (fibromyalgia) or
is disabled . . . .” [ECF No. 13, at 15 (quoting SSR 12-2p)]. Further, this discretionary provision is
directed only to situations where “there is insufficient evidence for us to determine whether the
person has an MDI of [fibromyalgia] or is disabled.” SSR 12-2p; see also id. (providing for the
discretionary purchase of a consultative examination “when we need this information to adjudicate
the case”). As set forth above, this is not such a situation. Accordingly, the ALJ did not err by
failing to obtain a consultative examination or call a medical expert in the proceedings below.
WHETHER THE ALJ ERRONEOUSLY BASED HIS DECISION ON IMPROPER
VOCATIONAL EXPERT TESTIMONY
Next, Plaintiff argues that the testimony of the vocational expert (“VE”) at the hearing was
flawed and, thus, that the ALJ erred in relying on it. [ECF No. 13, at 15-18]. Specifically, he
contends that the VE based his testimony on flawed research “based upon the employment of
workers with disability under special certificates” and that these jobs are not consistent with the
Dictionary of Occupational Titles. Id. Plaintiff also complains that the VE failed to provide the DOT
codes for Plaintiff’s past work and that the hypothetical questions posed to the VE did not contain
limitations consistent with the DOT and with light work. Id. This argument is without merit.
Regarding Plaintiff’s concern that the VE failed to provide a DOT job code for his past
relevant work, it is not a requirement that the VE do so. See Irelan v. Barnhart, 82 F. App’x 66, 72
(3d Cir. 2003). Moreover, and in any event, this issue is immaterial to the case at hand because
the ALJ concluded that Plaintiff could not perform his past relevant work. [ECF No. 10-2, at 48].
Plaintiff further complains that, if the VE’s testimony regarding the surveillance system
monitor job was consistent with the DOT, then Plaintiff could not, in fact, do that job because it
was a government job as coded. [ECF No. 13, at 16]. Again, however, this argument is immaterial
because the ALJ did not cite surveillance systems monitor as one of the jobs existing in the
national economy that Plaintiff could perform. See ECF No. 10-2, at 49 (citing sales attendant,
furniture rental clerk, and cashier II).
Similarly, Plaintiff’s assertion that the VE was confused about how much time an employee
could spend off task, and that he relied on a code section applying to workers with disabilities
under special certificates to explain the same, is without moment because the ALJ did not include
an off-task limitation in his RFC finding. It is well-settled that the law only requires the ALJ to
accept a VE’s responses to hypothetical questions that accurately reflect a claimant’s limitations
supported by the record. Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987); Podedworny
v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). Because the ALJ did not rely on the VE’s testimony
concerning time spent off task, there is no material error on this issue.
Plaintiff’s argument that the ALJ relied on an improper hypothetical question because the
ALJ failed to ask the VE about whether Plaintiff could lift and carry 20 pounds occasionally (as
opposed to just lift 20 pounds occasionally) is likewise nondispositive. As Defendant notes, the
ALJ limited Plaintiff to a range of “light work” in the RFC finding. Light work is defined as work
involving “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). Because light work does not
involve carrying of 20 pounds, the ALJ was not required to obtain or rely on VE testimony on that
point. Again, the law only requires the ALJ to include limitations supported by the record in his
hypothetical question to the vocational expert. Chrupcala, 829 F.2d at 1276; Podedworny, 745
F.2d at 218. Here, the substantial evidence cited elsewhere herein shows that the limitations the
ALJ adopted accurately reflected Plaintiff's impairments. See ECF Nos. 10-2, at 40-49 and
evidence cited therein. Because the ALJ properly considered Plaintiff's limitations supported by
the record, and the ALJ did not rely on a hypothetical question that inaccurately reflected those
limitations, I find no error on this issue.
WHETHER THE ALJ’S DECISION, INCLUDING HIS ANALYSIS OF THE TREATING
SOURCE CRITERIA, WAS SUPPORTED BY SUBSTANTIAL EVIDENCE
Plaintiff’s final argument consists of two conclusory paragraphs asserting that the ALJ
failed to afford proper weight to his treating sources and, therefore, that his decision is not
supported by substantial evidence. [ECF No. 13, at 19-20]. Specifically, Plaintiff complains that
the ALJ did not address these physicians (rheumatologists Mitra and Lowther) and nurse
practitioner (CNP Lhote) by name and contends that, because, these are treating providers, their
findings and opinions must be given great weight under the treating physician rule. See id.
Plaintiff’s bare-bones argument is without merit.
The amount of weight accorded to medical opinions is well-established. Generally, the
ALJ will give more weight to the opinion of a source who has examined the claimant than to a
non-examining source. 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). In addition, the ALJ generally
will give more weight to opinions from a treating physician, “since these sources are likely to be
the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s]
medical impairment(s) and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.” Id. § 404.1527(c)(2). The opinion of
a treating physician need not be viewed uncritically, however. Rather, only when an ALJ finds that
“a treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s]
impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence [of] record,” must he give
that opinion controlling weight. Id. Unless a treating physician’s opinion is given controlling weight,
the ALJ must consider all relevant factors that tend to support or contradict any medical opinions
of record, including the patient/physician relationship; the supportability of the opinion; the
consistency of the opinion with the record as a whole; and the specialization of the provider at
issue. Id. § 404.1527(c)(1)-(6). “[T]he more consistent an opinion is with the record as a whole,
the more weight [the ALJ generally] will give to that opinion.” Id. § 404.1527(c)(4). 5
In the event of conflicting medical evidence, the Court of Appeals for the Third Circuit has
Although the regulations governing the evaluation of medical evidence have been amended, the version
effective March 27, 2017, does not apply to the present claim. See 20 C.F.R. § 404.1527 (2017); 20 C.F.R.
§ 404.1520c (2017).
“A cardinal principle guiding disability determinations is that the ALJ accord
treating physicians’ reports great weight, especially ‘when their opinions reflect
expert judgment based on continuing observation of the patient’s condition over
a prolonged period of time.’” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
(quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). However, “where .
. . the opinion of a treating physician conflicts with that of a non-treating, nonexamining physician, the ALJ may choose whom to credit” and may reject the
treating physician’s assessment if such rejection is based on contradictory
medical evidence. Id. Similarly, under 20 C.F.R. § [404.1527]([c])(2), the opinion
of a treating physician is to be given controlling weight only when it is wellsupported by medical evidence and is consistent with other evidence in the
Becker v. Comm’r of Soc. Sec. Admin., 403 F. App’x 679, 686 (3d Cir. 2010). The ultimate issue
of whether an individual is disabled within the meaning of the Act is for the Commissioner to
decide. Thus, the ALJ is not required to afford special weight to a statement by a medical source
that a claimant is “disabled” or “unable to work.” See 20 C.F.R. § 404.1527(d)(1), (3); Dixon v.
Comm’r of Soc. Sec., 183 F. App’x 248, 251-52 (3d Cir. 2006) (“[O]pinions on disability are not
medical opinions and are not given any special significance.”).
Here, the ALJ appropriately applied these principles to his analysis of the medical
evidence, including the records of Drs. Mitra and Lowther and nurse practitioner Lhote. For the
reasons already discussed supra, CNP Lhote was not an acceptable medical source and,
therefore, the treating physician doctrine did not apply to her. See supra Section II.B and sources
cited therein. Also, for the reasons already set forth above, the ALJ’s evaluation of CNP Lhote’s
records and opinions was supported by substantial evidence. See id.
The ALJ’s analysis of Drs. Mitra and Lowther was similarly appropriate. As an initial matter,
Plaintiff never submitted opinions from Dr. Lowther directly to the ALJ. Rather, he submitted Dr.
Lowther’s opinion after the fact to the Appeals Council. [ECF No. 10-2, at 2, 31]. Therefore, the
ALJ analyzed only the doctors’ treatment notes and records in the record at the time of his
decision. These are not medical opinions that triggered the above duties under 20 C.F.R. §§
404.1527 and 416.927. After careful review, and as set forth elsewhere in this opinion, I find that
the ALJ properly evaluated these medical records and his evaluation of all of the medical opinions
and other medical evidence of record was supported by substantial evidence. For example,
among other things, the ALJ gave great weight to the opinion of state agency medical consultant
that, inter alia, Plaintiff could perform a less than full range of light work with restrictions. [ECF
No. 10-2, at 47 (citing Exs. 1A, 2A)]. The ALJ also cited to Plaintiff’s medical records reflecting
conservative treatment, Plaintiff’s noncompliance with treatment, and Plaintiff’s daily activities in
support of his RFC findings. See id. at 43-47 (citing Exs. 3E, 9D, 1F, 2F, 3F, 6F, 13F, 14F, 15F,
20F, and Hearing Testimony).
For all of these reasons, I find that the ALJ did not err in his evaluation of the medical
evidence, including evidence from Plaintiff’s treating providers.
For all of the foregoing reasons, Defendant’s Motion for Summary Judgment is granted
and Plaintiff’s Motion for Summary Judgment is denied. An appropriate Order follows.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CRAIG EDWIN REMALEY,
ANDREW M. SAUL, Commissioner of
Civil Action No. 2:19-1493
AMBROSE, Senior District Judge
ORDER OF COURT
AND NOW, this 31st day of March, 2021, after careful consideration of the submissions of
the parties and for the reasons set forth in the Opinion accompanying this Order, it is ordered that
Defendant’s Motion for Summary Judgment [ECF No. 16] is GRANTED, and Plaintiff’s Motion for
Summary Judgment [ECF No. 12] is DENIED. The decision of the Commissioner is hereby
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
U.S. Senior District Judge
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