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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

 

LORI HOCKENBERRY, 

 

 Plaintiff, 

 

 v. 

 

 

CAROLYN W. COLVIN, 

COMMISSIONER OF 

SOCIAL SECURITY, 

 

 

 Defendant. 

CASE NO. 4:15-cv-00793-MWB-GBC 

 

(JUDGE BRANN) 

(MAGISTRATE JUDGE COHN) 

REPORT AND 

RECOMMENDATION TO DENY 

PLAINTIFF’S APPEAL 

Docs. 1, 9, 10, 15, 20, 21 

REPORT AND RECOMMENDATION

I. Introduction 

The above-captioned action is one seeking review of a decision of the 

Commissioner of Social Security ("Defendant”) denying the application of Lori 

Hockenberry (“Plaintiff”) for disability insurance benefits under the Social 

Security Act, 42 U.S.C. §§401-433, 1382-1383 (the “Act”) and Social Security 

Regulations, 20 C.F.R. §§404.1501 et seq. (the “Regulations”). During the relevant 

period, Plaintiff worked slightly more than twenty-six hours per week at a Wendys. 

(Tr. 109-10). She claims she would be unable to work forty hours per week due to 

fatigue and pain. (Pl. Brief). No treating provider submitted a statement that meets 

the definition of “medical opinion” in 20 C.F.R. §404.1527(a). Doc. 10. All of the 

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statements that met the definition of “medical opinion” with regard to physical 

function are from non-treating providers and indicated that Plaintiff could perform 

the physical demands of work forty hours per week. Doc. 10.. There were 

conflicting medical opinions with regard to Plaintiff’s mental function, but neither 

was from treating providers or entitled to any special deference. Doc. 10. 

The Court reviews the ALJ’s denial under the deferential substantial 

evidence standard, where the Court affirms if any reasonable person would have 

denied benefits. Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal 

citations omitted). “Stated differently, this standard is met if there is sufficient 

evidence ‘to justify, if the trial were to a jury, a refusal to direct a verdict.’” Id. 

(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 

L.Ed. 456 (1951)). Here, Plaintiff fails to demonstrate that no reasonable person 

would deny her benefits. (Pl. Brief); (Pl. Reply). The ALJ reasonably concluded 

that Plaintiff could perform the physical demands of work forty hours per week. 

The Court would refuse to direct a verdict in Plaintiff’s favor “if the trial were to a 

jury.” Id. The Court recommends that Plaintiff’s appeal be denied, the decision of 

the Commissioner be affirmed, and the case closed. 

II. Procedural Background 

On July 12, 2012, Plaintiff applied for DIB. (Tr. 197-98). On September 20, 

2012, the Bureau of Disability Determination (“state agency”) denied Plaintiff’s 

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application (Tr. 137-54), and Plaintiff requested a hearing. (Tr. 155-56). On 

November 14, 2013, an ALJ held a hearing at which Plaintiff—who was 

represented by an attorney—and a vocational expert (“VE”) appeared and testified. 

(Tr. 105-35). On November 26, 2013, the ALJ found that Plaintiff was not entitled 

to benefits. (Tr. 85-104). Plaintiff requested review with the Appeals Council (Tr. 

83-84), which the Appeals Council denied on February 27, 2015, affirming the 

decision of the ALJ as the “final decision” of the Commissioner. (Tr. 1-7). See 

Sims v. Apfel, 530 U.S. 103, 107 (2000). 

On April 22, 2015, Plaintiff filed the above-captioned action pursuant to 42 

U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On June 29, 

2015, the Commissioner filed an answer and administrative transcript of 

proceedings. (Docs. 9, 10). On September 29, 2015, Plaintiff filed a brief in 

support of the appeal (“Pl. Brief”). (Doc. 15). On December 1, 2015, Defendant 

filed a brief in response (“Def. Brief”). (Doc. 20). On December 2, 2015, Plaintiff 

filed a brief in reply (“Pl. Reply”). (Doc. 21). On September 10, 2015, the Court 

referred this case to the undersigned Magistrate Judge. The matter is now ripe for 

review. 

III. Standard of Review and Sequential Evaluation Process 

To receive benefits under the Act, a claimant must establish an “inability to 

engage in any substantial gainful activity by reason of any medically determinable 

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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). The Act requires 

that a claimant for disability benefits show that: 

He is not only unable to do his previous work but cannot, considering 

his age, education, and work experience, engage in any other kind of 

substantial gainful work which exists in the national economy, 

regardless of whether such work exists in the immediate area in which 

he lives, or whether a specific job vacancy exists for him, or whether 

he would be hired if he applied for work. 

42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B). 

The ALJ uses a five-step evaluation process to determine if a person is 

eligible for disability benefits. See 20 C.F.R. § 404.1520. 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 from 20 C.F.R. Part 

404, Subpart P, Appendix 1 (“Listing”); (4) whether the claimant’s impairment 

prevents the claimant from doing past relevant work; and (5) whether the 

claimant’s impairment prevents the claimant from doing any other work. See 20 

C.F.R. §§ 404.1520. Before step four in this process, the ALJ must also determine 

Plaintiff's residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e). 

The disability determination involves shifting burdens of proof. The 

claimant bears the burden of proof at steps one through four. If the claimant 

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satisfies this burden, then the Commissioner must show at step five that jobs exist 

in the national economy that the claimant can perform. Mason v. Shalala, 994 F.2d 

1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability under the Act 

lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a). 

When reviewing the denial of disability benefits, the Court must determine 

whether substantial evidence supports the denial. Johnson v. Commissioner of 

Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence is a deferential 

standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 

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) 

(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial 

evidence is “less than a preponderance” and “more than a mere scintilla.” Jesurum 

v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) 

(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 

IV. Relevant Facts in the Record 

A. Age, Vocation, Education 

The administrative transcript is 646 pages. Doc. 10. Plaintiff was born on in 

1963 and was classified by the Regulations as a younger individual, then a person 

closely approaching advanced age, through the date of the ALJ decision. (Tr. 97); 

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20 C.F.R. § 404.1563. Plaintiff has at least a high school education and past 

relevant work as a sales attendant, cashier, and fast food worker. (Tr. 97, 132). She 

worked full-time at Sunoco as a shift leader from 2006 until June of 2012 (Tr. 110, 

218-19). She applied at several businesses, took eight weeks of computer classes, 

and “took four tests for the state transportation,” which she passed. (Tr. 125). She 

was on a list for state transportation jobs for a year. (Tr. 125). In November of 

2012, about four months after losing her job at Sunoco, she began working twentysix hours a week making sandwiches in the Wendy’s drive-thru. (Tr. 109-10). 

B. Testimony and Lay Reports 

Plaintiff alleges onset of July 10, 2012. (Tr. 90). On November 14, 2013, she 

testified that, for the previous year, she had worked twenty-six hours per week 

making sandwiches in the Wendy’s drive-thru. (Tr. 109-10). She testified that she 

was “not sure” if she could work at Wendy’s forty hours a week because it “might” 

be “exhausting.” (Tr. 126). She then testified that she could only walk for ten 

minutes at a time and only stand for two hours at a time before her legs get numb 

and she experiences back pain. (Tr. 112-13). She also testified that she worked 

three six-hour shifts a week, one five-hour shift a week, and one three-hour shift 

per week, with no ability to take breaks or sit down, and was on her feet for the 

entire six hour shift. (Tr. 118, 120). She testified that she took one extra 

unscheduled ten minute break per week. (Tr. 121-22). She testified that she did not 

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take days off from work due to her impairments. (Tr. 124). She testified that she 

took her children to activities four days a week, including Saturday. (Tr. 114). She 

testified that she could dress, shower, cook, shop, do dishes, do laundry, vacuum, 

sweep, take out the trash, and drive. (Tr. 110-11). She testified that she sleeps most 

of the day on Saturday and Sunday. (Tr. 119-20). 

On July 19, 2012, Plaintiff completed a Function Report. (Tr. 254). She 

reported that she could not lift “over” ten pounds and could not stand for “long 

periods of time.” (Tr. 254). She reported that her medications caused side effects of 

fatigue, personality changes, gastrointestinal problems, and “puffiness.” (Tr. 254). 

She reported problems concentrating, completing tasks, and following instructions. 

(Tr. 252). She reported that walking makes her right knee go numb. (Tr. 252). She 

reported that she could perform personal care and chores with the help of her 

children. (Tr. 247-52). She reported that was “extremely tired” with “no energy.” 

(Tr. 247). She reported occasional problems getting along with others. (Tr. 252). 

She reported fatigue everyday and “intense” low back pain. (Tr. 256). She reported 

that her pain only occurred for up to twenty minutes at night when she was going 

to bed, but it kept her up occasionally, even with medicine. (Tr. 256). 

Plaintiff’s “neighbor/friend” Teresa O’Conner also submitted a Function 

Report. (Tr. 258). She reported that Plaintiff “gets very tired” and “her feet swell.” 

(Tr. 258). She responded “I don’t know” to most questions. (Tr. 258-65). She 

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indicated that Plaintiff could only lift ten pounds and that when she stands for 

“hours,” her feet swell. (Tr. 263). She reported that Plaintiff can pay attention for 

“as long as necessary,” that paying attention was “not a problem,” that she finishes 

what she starts, and follows instructions well. (Tr. 263). She reporting that Plaintiff 

did not have any problems with walking, concentration, or getting along with 

others. (Tr. 263). She reported that Plaintiff has “held down a full time job and 

done household/yard chores, while caring independently for both her children and 

herself.” (Tr. 265). 

In October of 2012, Plaintiff reported that: 

I get up every morning get the kids off to school, then I am so 

exhausted I go back to sleep until 1 p.m. or so. I get up, let dog out, 

eat lunch, shower, make dinner, and do wash. Then I get ready for 

kids to come home. After Dinner, we have activities for the kids 

everynight, for both. I drive them and either sit waiting in the car or 

the waiting room. I don't work anymore. So I am not standing, 

squatting, bending down, for more than 10 minutes at a time. I still 

need all my medications, which new ones soon to come, who knows 

what the side effects will be. It is hard to stand without leaning on 

something, when sitting for long periods, my legs go numb, at night 

before going to sleep, I am experiencing chest pains almost like 

indigestion, but really hurting and uncomfortable. 

(Tr. 273). 

C. Medical Records 

Plaintiff underwent treatment in 2005 for kidney stones. (Tr. 286-324). She 

also had “very mild” Hepatitis C “consistent with stage 1 grade 1.” (Tr. 312). 

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Plaintiff treated at Family Care Mechanicsburg in 2011. (Tr. 345). In 

February of 2011, she presented for hypertension and respiratory impairments and 

reported that he job was very stressful. (Tr. 345). Plaintiff was anxious and 

overweight but examination was otherwise normal. (Tr. 345-47). In March, April 

and August of 2011, Plaintiff presented to for ear pain and cough. (Tr. 333, 340 

342). She denied dizziness, fatigue, and malaise. (Tr. 331, 342). Chronic problems 

included adjustment disorder, asthma, benign hypertension, Hepatitis C, and 

tobacco use. (Tr. 331, 342). Examinations were normal and providers assessed 

sinusitis and a respiratory infection, related in part to tobacco use. (Tr. 332, 340, 

343). At an annual examination in May of 2011, Plaintiff reported anxiety, 

asthma, and hypertension. (Tr. 334). This record does not mention pain. (Tr. 334). 

Plaintiff received medication for anxiety and hypertension. (Tr. 337). 

Plaintiff alleges onset of June 20, 2012, but the transcript contains no 

contemporaneous treatment records. Doc. 10. The only treatment between August 

of 2011 and her alleged onset date was in May of 2012, when Plaintiff reported 

temporary pain and symptoms of a urinary tract infection. (Tr. 354, 380). When 

she presented for a surgical evaluation on May 10, 2012, “her symptoms [were] all 

gone.” (Tr. 354). Examination indicated only abdominal tenderness. (Tr. 354). 

Providers noted Plaintiff had “some vague Gl symptoms, which today are resolved 

and had a CT scan 48 hours ago. This did not show any evidence of pathology in 

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the abdomen, I suspect she may have suffered from gastroenteritis, and this is 

better now.” (Tr. 354). Plaintiff did not have any subsequent treatment until after 

her alleged onset date. Doc. 10. 

Plaintiff stopped working on June 20, 2012. Doc. 10. On July 10, 2012, she 

presented to CRNP Wesley Kiepea for a pap smear. (Tr. 376). She denied fatigue 

and malaise. (Tr. 376). Except for a benign breast mass, examination was normal, 

with no tenderness, “[n]ormal range of motion, muscle strength, and stability in all 

extremities with no pain on inspection.” (Tr. 377). Plaintiff presented to CRNP 

Wesley Kiepea for an annual exam the next day. (Tr. 369). Plaintiff was 

unemployed. (Tr. 370). She reported anxiety and PTSD that were controlled with 

Lorazepam. (Tr. 370). She denied fatigue, malaise, sleep disturbance, “back pain, 

joint pain, joint swelling, muscle weakness and neck pain.” (Tr. 371). Examination 

indicated no tenderness, normal reflexes, and “normal range of motion, muscle 

strength, and stability in all extremities with no pain on inspection. Gait is normal.” 

(Tr. 373). CRNP Wesley Kiepea ordered testing for Hepatitis C and the breast 

mass. (Tr. 374). The same day, she opined that Plaintiff would be disabled for a 

full year due to Hepatitis C and hypertension. (Tr. 368). 

On August 7, 2012, Plaintiff underwent a gastroenterology examination for 

possible treatment of Hepatitis C with CRNP Matisse (Tr. 407). Plaintiff reported 

“fatigue, depression and abdominal pain...nausea, vomiting, diarrhea, difficulty 

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concentrating, irritability and weight gain” and denied “any symptoms of chronic 

liver disease... abdominal pain, jaundice, peripheral edema, abdominal swelling, 

mental changes, rashes or pruritus.” (Tr. 407). Plaintiff was “unemployed, looking 

for work, recently separated from work 6/2012.” (Tr. 408). Physical, mental, and 

musculoskeletal examinations were normal. (Tr. 410). Plaintiff was scheduled for 

additional testing. (Tr. 410). On September 13, 2012, CRNP Matisse stated that 

Plaintiff had “no limitation” in lifting, carrying, standing, walking, sitting, pushing, 

or pulling. (Tr. 399). 

On September 3, 2012, Plaintiff underwent a consultative psychiatric 

examination with Dr. Christopher Royer, Psy.D. (Tr. 427). Plaintiff reported that 

she had “10-pound weight lifting limit because of having a history of four 

surgeries.” (Tr. 427). She reported appetite changes, poor sleep, “that she stays 

awake and worries all night,” and that she had been “let go” from Sunoco two 

months earlier. (Tr. 428). Mental status examination indicated no abnormalities 

except “some difficulty with abstract conceptualizations.” (Tr. 429). Dr. Royer 

opined that Plaintiff had work-preclusive mental limitations, specifically marked 

limitations in making judgments on simple work-related decisions, interacting with 

supervisors and coworkers, and responding appropriately to changes in a routine 

setting. (Tr. 431). 

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 On September 11, 2012, Plaintiff followed-up with CRNP Mattise and 

denied weight changes, fatigue, “[b]ackache, Decreased Range of Motion, Joint 

Pain, Joint Stiffness, Joint Swelling, Muscle Atrophy and Muscle 

Weakness...Anxiety, Depression, Mood changes and Trouble Falling Asleep.” (Tr. 

464). Physical examination was normal, with “normal gait and station,” no spinal 

tenderness, “normal movements without pain and normal strength and tone,” and 

normal extremities. (Tr. 465). Mental status examination indicated that Plaintiff 

was “happy” and “talkative” with no abnormalities noted. (Tr. 465). 

On September 19, 2012, state agency physician Dr. Roger Fretz, Ph.D., 

reviewed Plaintiff’s file and authored an opinion. (Tr. 142). He opined that 

Plaintiff had mild limitation in activities of daily living and concentration, 

persistence, and pace, and moderate limitation in maintaining social functioning. 

(Tr. 142). 

Plaintiff’s application was initially denied on September 20, 2012. (Tr. 137). 

On October 7, 2012, Plaintiff presented to Dr. William Nasuti, D.O., with 

complaints of persistent back pain that had been ongoing for “9 years.” (Tr. 441). 

Plaintiff denied fatigue, weight gain, weight loss, “extremity weakness, gait 

disturbance and numbness in extremities.” (Tr. 441). Examination of the spine and 

extremities was normal, with no tenderness, no edema, and normal reflexes. (Tr. 

442). Mental status examination was normal. (Tr. 442). Dr. Nasuti ordered lumbar 

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spine X-rays, instructed Plaintiff to take Aleve, and indicated that neither an 

orthopedic consult nor an MRI were necessary. (Tr. 442). 

On November 11, 2012, Dr. Nasuti and Dr. Uniacke opined to the Housing 

Authority of Columbia County that Plaintiff was “unable to engage in any 

substantial, gainful activity.” (Tr. 529). 

On November 15, 2012, Plaintiff presented to Dr. Uniacke with a cold. (Tr. 

438). Plaintiff was assessed to have sinusitis. (Tr. 440). Plaintiff needed to start an 

anti-depressant before treating with interferon for Hepatitis C as scheduled in 

January of 2013. (Tr. 440). 

On November 23, 2012, Plaintiff followed-up with CRNP Matisse for 

Hepatitis C. (Tr. 478). CRNP Matisse noted “grade 1, stage 2” Hepatitis C. (Tr. 

478). CRNP Matisse deferred Hepatitis C treatment based on a “history of” mental 

health impairments, alcoholism, and drug abuse, with a history of suicidal thoughts 

“over ten years ago,” and recommended that Plaintiff “be evaluated for her 

depression and possibly get started on a maintenance dose of an antidepressant.” 

(Tr. 478). CRNP noted that Plaintiff had a “low viral load” and should engage in a 

low-fat weight loss diet and exercise. (Tr. 478). Plaintiff denied weight changes, 

fatigue, “[b]ackache, Decreased Range of Motion, Joint Pain, Joint Stiffness, Joint 

Swelling, Muscle Atrophy and Muscle Weakness...Anxiety, Depression, Mood 

changes and Trouble Falling Asleep.” (Tr. 482). Physical examination was normal, 

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with “normal gait and station,” no spinal tenderness, “normal movements without 

pain and normal strength and tone,” and normal extremities. (Tr. 482-83). Mental 

status examination indicated that Plaintiff was “happy” and “talkative” with no 

abnormalities noted. (Tr. 483). On January 8, 2013, Plaintiff returned to CRNP 

Matisse, and indicated that she had refused to start an anti-depressant because of its 

side effects. (Tr. 526). The record contains no evidence of treatment for the next 

five months. Doc. 10. 

 On December 12, 2012, state agency physician Dr. Mila Bacalla, M.D., 

reviewed Plaintiff’s file and authored an opinion. (Tr. 513). Dr. Bacalla opined that 

Plaintiff could perform a range of light work, perform occasional postural 

movements, and avoid exposure to fumes and other respiratory hazards. (Tr. 510-

11). Dr. Bacalla noted Plaintiff’s diagnoses of morbid obesity, Hepatitis C, and 

status post hernia surgeries. (Tr. 508). Dr. Bacalla explained that Plaintiff’s back 

impairment was “not well-documented.” (Tr. 512). Dr. Bacalla also explained that 

Plaintiff’s claim that she could walk for only five minutes and lift only ten pounds 

were “not well supported by the objective evidence.” (Tr. 512). 

 On May 11, 2013, Plaintiff presented to Dr. Uniacke for an ear ache. (Tr. 

540). Plaintiff reported “difficulty breathing when inhaling vapors from frying 

food at her job.” (Tr. 536). Dr. Uniacke diagnosed an asthma exacerbation and 

prescribed prednisone and a nasal spray. (Tr. 539). 

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 On July 2, 2013, Plaintiff presented to Dr. Fowler for a pap smear. (Tr. 

544). She reported back pain and denied fatigue, malaise, weight change, joint 

pain, joint swelling, and muscle weakness. (Tr. 545). Physical examination was 

normal, with normal respiratory findings, normal mental status examination, and 

“[n]ormal range of motion, muscle strength, and stability in all extremities with no 

pain on inspection.” (Tr. 547). Plaintiff was instructed to increase her activity as 

tolerated. (Tr. 548). On July 9, 2013, Plaintiff followed-up with a CRNP and 

reported dizziness, aching, swollen legs, and cramping feet. (Tr. 550). Examination 

was normal and Plaintiff was referred to an ENT. (Tr. 553). On July 23, 2013, 

Plaintiff followed-up with Dr. Fowler and reported urinary symptoms. (Tr. 557). 

Plaintiff reported fatigue and back pain. (Tr. 556). Examination was normal, with 

no swelling, normal sensation and mental status, and intact motor function and 

reflexes. (Tr. 558). 

On July 26, 2013, CT scan of the abdomen and pelvis indicated “fatty 

replacement of the liver and pancreas,” “with no evidence of urinary tract 

calcification or obstruction... no additional abnormality noted with regard to the 

urinary tract and there is no CT explanation, at this time, for hematuria,” and “no 

evidence of obstruction of the GI tract....or other significant abnormality.” (Tr. 

618). In August of 2013, a benign cervical polyp was removed. (Tr. 612-14, 619-

21). 

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 On August 16, 2013, CRNP Matisse noted that Plaintiff had a “very low 

viral load,” was “doing quite well,” and “denied any symptoms of chronic liver 

disease.” (Tr. 565). CRNP Matisse deferred Hepatitis C treatment. (Tr. 565). On 

September 5, 2013, Plaintiff followed-up with CRNP Matisse and reported fatigue 

and lower extremity swelling. (Tr. 566). She reported the swelling occurred “when 

she is on her feet all day at her job.” (Tr. 566). Plaintiff’s “liver disease ha[d] been 

stable and treatment [was] being postponed until the newer treatment is on the 

market with less side effects.” (Tr. 566). CRNP Matisse observed scattered 

wheezes, “some erythematous areas and spider veins,” and non-pitting edema. (Tr. 

569). Musculoskeletal examination indicated “mild” tenderness and “mild” pain. 

(Tr. 569). CRNP Matisse instructed Plaintiff to treat her swelling with Tylenol. 

(Tr. 570). 

 On September 10, 2013, Plaintiff saw a specialist for ear, nose, and throat 

complaints. (Tr. 622). Plaintiff reported “benign positional vertigo symptoms that 

resolved spontaneously. They would only happen in bedtime and they have not 

occurred for quite a while.” (Tr. 623). She was prescribed Flonase. (Tr. 623). 

Plaintiff “no showed” for her follow-up appointment scheduled the next month. 

(Tr. 628). 

 On September 20, 2013, Plaintiff followed-up with another provider at 

CRNP Matisse’s office. (Tr. 571). Plaintiff reported intermittent rectal bleeding 

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and constant fatigue. (Tr. 571). Colonoscopy eleven months earlier had indicated 

diverticulosis and hemorrhoids. (Tr. 571). Examination was normal, with no 

swelling, normal sensation, no spinal tenderness, “normal gait and 

station....normal movements without pain and normal strength and tone.” (Tr. 

574). Plaintiff was instructed to take vitamins for fatigue and was prescribed 

Anusol for the rectal bleeding. (Tr. 575). 

On October 2, 2013, Dr. Fowler authored a letter where she opined that 

Plaintiff was “working well beyond her physical capacity to provide for her 

family,” which was “taking a great toll on her physical condition,” and she 

“recommend[ed] that [Plaintiff] receive as much support as possible to help her 

provide for her family.” (Tr. 605). She identified Plaintiff’s diagnoses of Hepatitis 

C, asthma, chronic abdominal pain and previous abdominal hernia repair with 

mesh, a mood disorder, diverticulosis, and diverticulitis. (Tr. 605). The same day, 

treatment records indicate that Plaintiff was complaining of fatigue and increased 

abdominal pain. (Tr. 606). On October 15, 2013, Dr. Fowler noted improved 

diverticulitis and instructed Plaintiff to increase her activity level and water intake. 

(Tr. 610). 

D. Sentence Six 

Plaintiff submitted additional records that were not before the ALJ. (Tr. 633-

46). They were not material because they do not support Plaintiff’s claims. On 

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August 6, 2013, CRNP Mattise noted that Plaintiff denied fatigue, tiredness, 

weight changes, difficulty breathing, decreased range of motion, weakness, and 

trouble sleeping, and normal respiratory examination, normal mental status, and 

normal musculoskeletal function except for “mild” pain and “mild” tenderness. 

(Tr. 637). On October 15, 2013, Dr. Fowler noted that Plaintiff denied fatigue, 

problems breathing (dyspnea), anxiety, depression, psychiatric symptoms, gait 

disturbance, “bone/joint symptoms, joint swelling, leg pain, muscle weakness and 

weakness.” (Tr. 642). Examination showed normal respiration, abdominal 

tenderness, intact motor function and reflexes, normal sensation, and normal 

mental status. (Tr. 644). On January 1, 2014, Dr. Fowler assessed Plaintiff’s 

hypertension as stable. (Tr. 646). These records also contain an opinion from Dr. 

Uniacke that Plaintiff’s limitations were not present until “Winter 2014.” (Tr. 5-6, 

8-82, 633-46). 

V. Plaintiff Allegations of Error 

A. Medical Opinions 

Plaintiff asserts that the ALJ erred in assigning weight to the medical 

opinions. (Pl. Brief). “Medical opinions are statements from physicians and 

psychologists or other acceptable medical sources that reflect judgments about the 

nature and severity of your impairment(s), including your symptoms, diagnosis and 

prognosis, what you can still do despite impairment(s), and your physical or mental 

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restrictions.” 20 C.F.R. § 404.1527(a)(2). Medical opinions can come from 

various sources, including treating physicians, examining physicians, and nonexamining physicians. 20 C.F.R. §§ 404.1527(c)(1)-(2). Statements on issues 

reserved to the Commissioner and statements from sources who are not acceptable 

medical sources are excluded from the definition of "medical opinion." See 20 

C.F.R. §§ 404.1527(a)(2); 404.1527(d). 

The Regulations provide special deference to medical opinions from treating 

sources who have “seen [the claimant] a number of times and long enough to have 

obtained a longitudinal picture of [the claimant’s] impairment” (“treating source 

rule”). See 20 C.F.R. § 404.1527(c)(2). If a medical opinion subject to the treating 

source rule (“treating source medical opinion”) is “well-supported by medically 

acceptable clinical and laboratory diagnostic techniques and is not inconsistent 

with the other substantial evidence in your case record” the ALJ must “give it 

controlling weight.” 20 C.F.R. § 404.1527(c)(2). 

If a statement or medical opinion is not subject to the treating source rule, 

the ALJ does not need to afford the statement or medical opinion any special 

deference or meet the “good reasons” requirement of 20 C.F.R. §404.1527(c)(2). 

When evidence is not entitled to special deference, the Court reviews the ALJ’s 

resolution of an evidentiary conflict using the substantial evidence standard of 

review. See Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994). As long as the ALJ 

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“explain[s] in the decision the weight given” and a reasonable person would find 

the evidence adequate to discount the opinion, the Court will uphold the ALJ’s 

assignment of weight to a non-treating source opinion. See 20 C.F.R. 

§404.1527(e)(ii); Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal 

quotation omitted). 

When the ALJ does not assign controlling weight to a treating source 

opinion, ALJ applies the factors in 20 C.F.R. §404.1527(c). Section 404.1527(c)(1) 

provides that, “[g]enerally, [the Commissioner] give[s] more weight to the opinion 

of a source who has examined you than to the opinion of a source who has not 

examined you.” Id. Pursuant to 20 C.F.R. §404.1527(c)(3), “[t]he more a medical 

source presents relevant evidence to support an opinion, particularly medical signs 

and laboratory findings, the more weight we will give that opinion” and “[t]he 

better an explanation a source provides for an opinion, the more weight we will 

give that opinion.” Id. Pursuant to 20 C.F.R. §404.1527(c)(4), “the more 

consistent an opinion is with the record as a whole, the more weight we will give to 

that opinion.” Id. Pursuant to 20 C.F.R. §404.1527(c)(5), more weight may be 

assigned to specialists, and 20 C.F.R. §404.1527(c)(6) allows consideration of 

other factors which “tend to support or contradict the opinion.” Id. 

SSR 95-6p provides: 

[T]reating source opinions on issues that are reserved to the 

Commissioner are never entitled to controlling weight or special 

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significance. Giving controlling weight to such opinions would, in 

effect, confer upon the treating source the authority to make the 

determination or decision about whether an individual is under a 

disability, and thus would be an abdication of the Commissioner's 

statutory responsibility to determine whether an individual is disabled. 

Id. 

Plaintiff asserts that the ALJ violated the “treating physician rule” contained 

in 20 C.F.R. §404.1527 with regard to statements by Dr. Fowler, Dr. Nasuti, Dr. 

Uniacke, and nurse practitioner Wesley-Kiepea. (Pl. Brief at 17-18). Plaintiff notes 

that nurse practitioner Wesley-Kiepea opined that she was “totally disabled,” Dr. 

Nasuti and Dr. Uniacke opined that she was “disabled from substantial gainful 

activity,” and Dr. Fowler opined that Plaintiff was “working at or beyond her 

physical capacity,” and “could not work more than the 20-25 hours a week she was 

working at that time.” (Pl. Brief at 17-18) (citing Tr. 368, 529, 605-06). However, 

all of these statements are either on issues reserved to the Commissioner, 

statements from sources who are not acceptable medical sources, or both. See 20 

C.F.R. §§ 404.1527(a)(2); 404.1527(d). None of these meet the definition of 

“medical opinion.” Id. The treating source rule applies only to statements that meet 

the definition of medical opinion. See 20 C.F.R. §404.1527(c)(2); SSR 96-5p 

(Statements on issues reserved to the Commissioner are “never entitled to...special 

significance”); SSR 06-3p (“only ‘acceptable medical sources’ can be considered 

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treating sources”). Thus, the treating source rule does not apply to any of these 

statements. 

In some cases, it may be error for an ALJ to reject a medical opinion simply 

because it is on an issue reserved to the Commissioner without recontacting the 

physician. However, when the matter is before a District Court, the ALJ’s duty to 

develop the record coexists with a claimant’s duty to present all relevant evidence 

to the ALJ, and establish good cause for omitted evidence. See Matthews v. Apfel, 

239 F.3d 589, 593 (3d Cir. 2001). The Court in Matthews explained: 

It might seem ... that the district judge and we would be free to 

consider the new evidence that was before the Appeals Council in 

deciding whether the decision denying benefits was supported by the 

record as a whole. And of course this is right when the Council has 

accepted the case for review and made a decision on the merits, based 

on all the evidence before it, which then becomes the decision 

reviewed in the courts. It is wrong when the Council has refused to 

review the case. For then the decision reviewed in the courts is the 

decision of the administrative law judge. The correctness of that 

decision depends on the evidence that was before him. He cannot be 

faulted for having failed to weigh evidence never presented to him.... 

Id. (quoting Eads v. Sec'y of Dep't of Health & Human Servs., 983 F.2d 815, 817 

(7th Cir. 1993)). The Court continued: 

Our holding is also in accord with sound public policy. We should 

encourage disability claimants to present to the ALJ all relevant 

evidence concerning the claimant's impairments. If we were to order 

remand for each item of new and material evidence, we would open 

the door for claimants to withhold evidence from the ALJ in order to 

preserve a reason for remand. See Szubak, 745 F.2d at 834 (“A 

claimant might be tempted to withhold medical reports, or refrain 

from introducing all relevant evidence, with the idea of obtaining 

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another bite of the apple if the Secretary decides that the claimant is 

not disabled.”) (quotation omitted); Wilkins, 953 F.2d at 97 

(Chapman, J., dissenting) (“By allowing the proceedings to be 

reopened and remanded for additional evidence, ... the majority is 

encouraging attorneys to hold back evidence and then seek remand for 

consideration of evidence that was available at the time of the ALJ 

hearing.”). Instead, we believe that it is a much sounder policy to 

require claimants to present all material evidence to the ALJ and 

prohibit judicial review of new evidence unless there is good reason 

for not having brought it before the ALJ. Such a holding is 

instrumental to the speedy and orderly disposition of Social Security 

claims. 

Matthews v. Apfel, 239 F.3d 589, 595 (3d Cir. 2001). In Matthews, the Court held 

that the claimant “should have known” the additional evidence, a vocational 

evaluation, was necessary. Id. Consequently, the claimant failed to establish good 

cause. In Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 360 (3d Cir. 2011), the 

Court held that a claimant failed to establish good cause for failing to submit 

medical opinions. Id. When a statement from a treating source is on an issue 

reserved to the Commissioner, Plaintiff should have known that a more detailed 

opinion would be necessary because the Regulations plainly state that statements 

on issues reserved to the Commissioner are not medical opinions or entitled to any 

special deference. See 20 C.F.R. §404.527; SSR 96-5p. Plaintiff has not established 

good cause for failing to provide any treating source medical opinions. 

Aside from arguing that the ALJ’s evaluation violated the treating source 

rule, Plaintiff cites only medical records that indicate “fatigue and need for 

antidepressants in November of 2012,” her report of “worsening back pain,” and 

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her diagnoses of hypertension, Hepatitis C, asthma, abdominal pain, hernia repair, 

mood disorder, diverticulosis and diverticulitis. (Pl. Brief at 17-18) (citing Tr. 368, 

438, 441, 605-06). Plaintiff focuses her argument on Dr. Fowler, arguing that 

“[t]he only evidence inconsistent with the opinion of Dr. Fowler is from the nonexamining state agency medical doctor.” (Pl. Brief at 19) (citing Tr. 509-11). 

However, as discussed above, Dr. Fowler’s statement was not a medical opinion. 

See 20 C.F.R. §404.527; SSR 96-5p. Moreover, Dr. Fowler’s statement was also 

contradicted by CRNP Matisse, who indicated that Plaintiff had no limitation in 

lifting, carrying, standing, walking, sitting, pushing, and pulling. (Tr. 399, 407, 

410). Dr. Fowler’s opinion is also contradicted by Plaintiff’s claims to her other 

treating providers, to whom she denied fatigue and pain. (Tr. 370-71, 376-77, 464, 

482, 637, 642). Finally, Dr. Fowler’s opinion is contradicted by the opinion 

submitted after the ALJ decision, which indicates that Plaintiff’s limitations were 

not present until “Winter 2014,” which was after the 2013 ALJ decision. (Tr. 14). 

With regard to diagnoses, diagnoses fail to establish disability under the Act. See 

Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991) (There is no “presumption that 

a mere diagnosis...renders an applicant eligible for benefits under the Social 

Security Act”). 

With regard to CRNP Wesley Kiepea, the same day CRNP Wesley Kiepea 

opined that Plaintiff would be disabled for a full year due to Hepatitis C and 

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hypertension, CRNP Wesley Kiepea noted Plaintiff reported anxiety and PTSD 

that were controlled with Lorazepam and denied fatigue, malaise, sleep 

disturbance, “back pain, joint pain, joint swelling, muscle weakness and neck 

pain.” (Tr. 370-71). Examination indicated no tenderness, normal reflexes, and 

“normal range of motion, muscle strength, and stability in all extremities with no 

pain on inspection. Gait is normal.” (Tr. 373). CRNP Wesley Kiepea ordered 

testing for Hepatitis C and the breast mass. (Tr. 374). In other words, CRNP 

Wesley Kiepea opined that Plaintiff’s Hepatitis C was disabling, and would be 

disabling for a full year, before she even got Plaintiff’s viral load test back. (Tr. 

368, 374). CRNP Wesley Kiepea opined that Plaintiff’s hypertension was 

disabling, and would be disabling for a full year, without noting any symptoms 

related to hypertension. (Tr. 368, 370-71). 

Plaintiff relies on evidence that was not before the ALJ. (Pl. Brief at 18) 

(citing Tr. 21, 25, 646). However, evidence that was not before the ALJ may not be 

considered by a reviewing court unless is it is new, material, and omitted for good 

cause. See Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). On August 6, 

2013, CRNP Mattise noted that Plaintiff denied fatigue, tiredness, weight changes, 

difficulty breathing, decreased range of motion, weakness, and trouble sleeping, 

and normal respiratory examination, normal mental status, and normal 

musculoskeletal function except for “mild” pain and “mild” tenderness. (Tr. 637). 

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On October 15, 2013, Dr. Fowler noted that Plaintiff denied fatigue, problems 

breathing (dyspnea), anxiety, depression, psychiatric symptoms, gait disturbance, 

“bone/joint symptoms, joint swelling, leg pain, muscle weakness and weakness.” 

(Tr. 642). Examination showed normal respiration, abdominal tenderness, intact 

motor function and reflexes, normal sensation, and normal mental status. (Tr. 644). 

On January 1, 2014, Dr. Fowler assessed Plaintiff’s hypertension as stable. (Tr. 

646). Here, Plaintiff makes no argument that the evidence was new, material, or 

omitted for good cause. (Pl. Brief); (Pl. Reply); Local Rule 84.40.4(b) (“The court 

will consider only those errors specifically identified in the briefs.”). Even if 

Plaintiff had made this argument the Court would conclude that it was either not 

omitted for good cause, not material, or both. See Matthews v. Apfel, 239 F.3d 589, 

593 (3d Cir. 2001). The Court does not recommend remand on these grounds. 

B. Credibility 

Plaintiff asserts that the ALJ erred in assessing her credibility and Teresa 

O’Connor’s credibility. (Pl. Brief at 19-22). Plaintiff also asserts that the ALJ 

should have incorporated her subjective complaints of fatigue into the RFC. (Pl. 

Brief at 16-17). When making a credibility finding, “the adjudicator must consider 

whether there is an underlying medically determinable physical or mental 

impairment(s)...that could reasonably be expected to produce the individual's pain 

or other symptoms.” SSR 96-7P. Then: 

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[T]he adjudicator must evaluate the intensity, persistence, and limiting 

effects of the individual's symptoms to determine the extent to which 

the symptoms limit the individual's ability to do basic work activities. 

For this purpose, whenever the individual's statements about the 

intensity, persistence, or functionally limiting effects of pain or other 

symptoms are not substantiated by objective medical evidence, the 

adjudicator must make a finding on the credibility of the individual's 

statements based on a consideration of the entire case record. 

SSR 96-7P. In assessing credibility, the Regulations instruct the ALJ to consider 

factors enumerated in 20 C.F.R. §404.1529. The ALJ is first instructed to consider 

“objective medical evidence,” which “is evidence obtained from the application of 

medically acceptable clinical and laboratory diagnostic techniques, such as 

evidence of reduced joint motion, muscle spasm, sensory deficit or motor 

disruption.” 20 C.F.R. § 404.1529(c)(2). The ALJ is then instructed to consider 

“other evidence.” 20 C.F.R. § 404.1529(c)(3). Other evidence includes Plaintiff’s 

course of treatment, her daily activities, and the overall consistency of her claims. 

Id.; SSR 96-7p. 

Here, the ALJ found that Plaintiff and Teresa O’Conner were less than fully 

credible based on: (1) objective medical evidence, including nurse practitioner 

Mattise’s statement, Dr. Bacalla’s opinion, and normal examination findings; (2) 

conservative treatment for Hepatitis C, gastrointestinal impairments, and asthma; 

(3) inconsistencies in Plaintiff’s claims; and (4) Plaintiff’s activities of daily 

living. (Tr. 94-97). Plaintiff summarizes Plaintiff’s testimony and Teresa 

O’Connor’s Function Report (Pl. Brief at 19-20) and summarizes the applicable 

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law regarding credibility. (Pl. Brief at 20-21). Otherwise, Plaintiff’s only specific 

argument regarding credibility is that her liver biopsy showing Hepatitis C and Dr. 

Fowler’s opinion regarding fatigue caused by Hepatitis C supported her claims of 

debilitating fatigue, and “the only significant evidence inconsistent with the 

Plaintiff's allegations of debilitating fatigue is from the non-examining state agency 

medical doctor who felt the Plaintiff could still sit, stand and walk six hours at of 

an eight hour workday.” (Pl. Brief at 22) (citing Tr. 478, 605). Plaintiff asserts that, 

as a result, the ALJ “provided little, if any, rationale for rejecting the testimony of 

the Plaintiff and the statements of her witness, Teresa O'Connor.” (Pl. Brief at 22).1

 

Plaintiff does not address three out of four of the ALJ’s reasons for finding 

her less than fully credible whatsoever, specifically that her claims and Teresa 

O’Connor’s claims were contradicted by her conservative treatment, 

inconsistencies in her claims, or Plaintiff’s activities of daily living. (Pl. Brief at 

19-22); (Pl. Reply). With regard to the objective medical evidence, Plaintiff only 

addresses Dr. Bacalla’s opinion. (Pl. Brief at 19-22). The ALJ may rely on medical 

 1

Again, Plaintiff cites some evidence that was not present before the ALJ, 

specifically Plaintiff’s explanation that she was only able to do household chores 

and drive “when she felt mentally and physically able to.” (Pl. Brief at 20) (citing 

Tr. 20). However, evidence that was not before the ALJ may not be considered by 

a reviewing court unless is it is new, material, and omitted for good cause. See 

Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). Here, Plaintiff makes no 

argument that the evidence was new, material, or omitted for good cause. (Pl. 

Brief); (Pl. Reply). Even if Plaintiff had made this argument the Court would 

conclude that it was not omitted for good cause. 

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opinions to interpret the objective evidence in assessing Plaintiff’s credibility. See 

Seever v. Barnhart, 188 F. App'x 747, 754 (10th Cir. 2006) (citing Winfrey v. 

Chater, 92 F.3d 1017, 1022 (10th Cir.1996)) (We will not fault the ALJ for failing 

to interpret [Plaintiff’s] symptoms and test results differently than [a medical 

expert]”). 

 The ALJ properly relied on inconsistent claims. “One strong indication of 

the credibility of an individual's statements is their consistency, both internally and 

with other information in the case record.” SSR 96-7p. Plaintiff testified that she 

could only walk for ten minutes at a time and only stand for two hours at a time 

before her legs get numb and she experiences back pain. (Tr. 112-13). She also 

testified that she worked three six-hour shifts a week, one five-hour shift a week, 

and one three-hour shift per week, with no ability to take breaks or sit down, and 

was on her feet for the entire six hour shift. (Tr. 118, 120). She testified that she 

took one extra unscheduled ten minute break per week. (Tr. 121-22). The medical 

records also document inconsistent claims. Plaintiff alleges onset on June 20, 2012, 

when she lost her job at Sunoco, but there are no contemporaneous treatment 

records. Doc. 10. In July of 2012, she denied fatigue and pain. (Tr. 370-71, 376-

77). She reported fatigue and pain to CRNP Mattise in August of 2012, but CRNP 

Mattise’s examination was normal and CRNP Mattise opined that Plaintiff had no 

limitation in lifting, carrying, standing, walking, sitting, pushing, or pulling. (Tr. 

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399, 407, 410). Plaintiff subsequently denied fatigue and pain to CRNP Matisse in 

September of 2012. (Tr. 464). Plaintiff’s application for benefits under the Act was 

denied, and she then reported to Dr. Nasuti that she had been experiencing 

“persistent” back pain for “nine years.” (Tr. 137, 441). The next month, she denied 

fatigue and back pain. (Tr. 482). She reported fatigue and pain to Dr. Fowler in 

July of 2013, but subsequently denied fatigue and pain. (Tr. 556, 637, 642). The 

ALJ also properly relied on Plaintiff’s conservative treatment. “[T]he individual's 

statements may be less credible if the level or frequency of treatment is 

inconsistent with the level of complaints, or if the medical reports or records show 

that the individual is not following the treatment as prescribed and there are no 

good reasons for this failure.” SSR 96-7P. 

To the extent Plaintiff asserts that the ALJ did not “consider” various 

credibility factors, “there is a distinction between what an adjudicator must 

consider and what the adjudicator must explain in the disability determination or 

decision.” SSR 06-3p; see also Phillips v. Barnhart, 91 Fed.Appx. 775, 780 (3d 

Cir. 2004) (“the ALJ's mere failure to cite specific evidence does not establish that 

the ALJ failed to consider it”) (quoting Black v. Apfel, 143 F.3d 383, 386 (8th 

Cir.1998)); Francis v. Comm'r Soc. Sec. Admin., 414 Fed.Appx. 802, 804-05 (6th 

Cir. 2011) (“Although the regulations instruct an ALJ to consider these factors, 

they expressly require only that the ALJ's decision include “good reasons ... for the 

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weight ... give[n] [to the] treating source's opinion”—not an exhaustive factor-byfactor analysis...Procedurally, the regulations require no more.”) (internal citations 

omitted). 

If explanation allows meaningful judicial review, it suffices. See Christ the 

King Manor, Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 305 

(3d Cir. 2013) (Court may “uphold a decision of less than ideal clarity if the 

agency's path may reasonably be discerned”); Jones v. Barnhart, 364 F.3d 501, 

505 (3d Cir. 2004) (ALJ is not required to “use particular language or adhere to a 

particular format in conducting his analysis” and instead must only “ensure that 

there is sufficient development of the record and explanation of findings to permit 

meaningful review.”); Hur v. Comm’r Soc Sec., 94 F. App’x130, 133(3d Cir. 2004) 

(“There is no requirement that the ALJ discuss in its opinion every tidbit of 

evidence included in the record”). 

“Neither the district court nor the Court of Appeals is empowered to weigh 

the evidence or substitute its conclusions for those of the fact-finder.” Williams v. 

Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citing Early v. Heckler, 743 F.2d 

1002, 1007 (3d Cir.1984)); see also Chandler v. Comm’r of Soc. Sec., 667 F.3d 

356, 359 (3d Cir.2011) (“Courts are not permitted to re-weigh the evidence or 

impose their own factual determinations”) (citing Richardson v. Perales, 402 U.S. 

389, 401 (1971)). The ALJ is entitled to deference with regard to credibility 

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determinations. See Szallar v. Comm'r Soc. Sec., No. 15-1776, 2015 WL 7445399, 

at *1 (3d Cir. Nov. 24, 2015) (“the ALJ's assessment of his credibility is entitled to 

our substantial deference”) (citing Zirnsak v. Colvin, 777 F.3d 607, 612–13 (3d 

Cir.2014)). Plaintiff must demonstrate that no reasonable mind would accept the 

evidence cited by the ALJ to conclude that she was not fully credible. See 

Richardson v. Perales, 402 U.S. at 401 (1971). Plaintiff fails to do so, and the 

Court does not recommend remand on these grounds. 

C. Mental Impairments 

Plaintiff asserts that the ALJ erred in finding her mood disorder to be nonsevere. (Pl. Reply). Plaintiff asserts that this error was harmful because the ALJ 

failed to include marked limitations in the hypothetical to the VE. (Pl. Brief at 13-

17). Plaintiff relies on Dr. Royer’s opinion and Dr. Fretz’s opinion, but they were 

not treating sources so their opinions were not entitled to any special deference. 

(Pl. Brief at 13-16). The prohibition on lay reinterpretation of evidence no longer 

applies to non-treating sources. Plaintiff cites a variety of Third Circuit cases from 

prior to the 1991 enactment of 20 C.F.R. 404.1527(c)(2). (Pl. Brief at 17-19). 

Section 404.1527 retained these cases with regard to well-supported medical 

opinions from treating sources that are not inconsistent with other substantial 

evidence. See Tilton v. Colvin, No. 1:14-CV-02219-YK-GBC, 2016 WL 1580003, 

at *5 (M.D. Pa. Mar. 31, 2016), report and recommendation adopted, No. 1:14-

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CV-2219, 2016 WL 1569895 (M.D. Pa. Apr. 19, 2016) (citing Burns v. Colvin,

No. 1:14–CV–1925, 2016 WL 147269 (M.D. Pa. Jan. 13, 2016) (citing United 

States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993); 

Sebelius v. Cloer, ___ U.S. ____, 133 S.Ct. 1886, 1896, 185 L.Ed.2d 1003 (2013); 

Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254, 112 S.Ct. 1146, 117 

L.Ed.2d 391 (1992); BFP v. Resolution Trust Corp., 511 U.S. 531, 543, 114 S.Ct. 

1757, 128 L.Ed.2d 556 (1994)). 

However, Section 404.1527 abrogated these cases with regard to nontreating sources. When regulatory language “speak[s] directly” to an issue, and is 

not “compatible with preexisting practice,” the regulation abrogates common-law. 

Sebelius v. Cloer, –––U.S. ––––, 133 S.Ct. 1886, 1896, 185 L.Ed.2d 1003 (2013) 

(internal citations omitted); BFP v. Resolution Trust Corp., 511 U.S. 531, 543, 114 

S.Ct. 1757, 128 L.Ed.2d 556 (1994) (internal citations omitted). The Regulations 

provide that ALJs are “not bound by any findings made by State agency medical or 

psychological consultants, or other program physicians or psychologists.” 20 

C.F.R. § 404.1527(e)(2)(i). The prior cases held that the ALJ was bound by any 

uncontradicted medical opinions, even from non-treating sources. See Frankenfield 

v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 29–30 

(3d Cir. 1986); Ferguson v. Schweiker, 765 F.2d 31, 37, 36–37 (3d Cir. 1985); 

Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983); Van Horn v. Schweiker, 717 

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F.2d 871, 874 (3d Cir. 1983); Kelly v. R.R. Ret. Bd., 625 F.2d 486, 494 (3d Cir. 

1980); Rossi v. Califano, 602 F.2d 55, 58–59, (3d Cir. 1979); Fowler v. Califano,

596 F.2d 600, 603 (3d Cir. 1979); Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 

1978). Consequently, 20 C.F.R. §404.1527(e)(2)(i) speaks directly to this issue, is 

incompatible with the prior law, and abrogates the prior cases with regard to nontreating opinions. An ALJ is no longer prohibited from reinterpreting medical 

evidence to supplant the opinion of a non-treating source. See 20 C.F.R. 

§404.1527(e)(2)(i). 

Consequently, the ALJ must simply apply the factors in 20 C.F.R. 

§404.1527(c)(1)-(6) to assess the opinions. Id. Plaintiff cites her subjective claims 

and Teresa O’Connor’s subjective claims, but the ALJ properly found those claims 

were not fully credible. Supra. Moreover, as Plaintiff notes, “[t]he only evidence in 

the record addressing mental impairments [are] the aforementioned opinion[s].” 

(Pl. Brief at 14). In other words, Plaintiff cites no medical evidence of mental 

impairments. (Pl. Brief). Consequently, Plaintiff fails to demonstrate that 

regulatory factors, such as the consistency of the opinions with other evidence, or 

the extent of support for the opinions, suggests that they should be credited. See 20 

C.F.R. §404.1527(c)(3)-(4). The record supports the ALJ’s assessment. Providers 

noted a “history of” mental impairments, but mental status examinations, including 

Dr. Royer’s, were consistently normal. (Tr. 410, 429, 442, 465, 478, 547, 558). 

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Plaintiff reported depression once, in August of 2012, but by September of 2012 

she was denying anxiety, depression, mood changes, and trouble sleeping. (Tr. 

407, 464, 482). Plaintiff was “happy” and “talkative.” (Tr. 465, 483). She refused 

to take anti-depressants. (Tr. 526). The Court does not recommend remand on 

these grounds. 

VI. Conclusion 

The Court finds that the ALJ made the required specific findings of fact in 

determining whether Plaintiff met the criteria for disability, and the findings were 

supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Brown, 845 

F.2d at 1213; Johnson, 529 F.3d at 200; Pierce, 487 U.S. at 552; Hartranft, 181 

F.3d at 360; Plummer, 186 F.3d at 427; Jones, 364 F.3d at 503. Substantial 

evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 

503 (3d Cir. 2004). 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) (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 

229 (1938)). “Stated differently, this standard is met if there is sufficient evidence 

‘to justify, if the trial were to a jury, a refusal to direct a verdict.’” Id. (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 

(1951)). Here, a reasonable mind might accept the relevant evidence as adequate. 

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The Court would not direct a verdict in Plaintiff’s favor if the issues were before a 

jury. Accordingly, it is HEREBY RECOMMENDED: 

I. This appeal be DENIED, as the ALJ’s decision is supported by 

substantial evidence; and 

II. The Clerk of Court close this case. 

The parties are further placed on notice that pursuant to Local Rule 72.3: 

Any party may object to a Magistrate Judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within 

fourteen (14) days after being served with a copy thereof. Such party 

shall file with the clerk of court, and serve on the Magistrate Judge 

and all parties, written objections which shall specifically identify the 

portions of the proposed findings, recommendations or report to 

which objection is made and the basis for such objections. The 

briefing requirements set forth in Local Rule 72.2 shall apply. A 

Judge shall make a de novo determination of those portions of the 

report or specified proposed findings or recommendations to which 

objection is made and may accept, reject, or modify, in whole or in 

part, the findings or recommendations made by the magistrate judge. 

The Judge, however, need conduct a new hearing only in his or her 

discretion or where required by law, and may consider the record 

developed before the magistrate judge, making his or her own 

determination on the basis of that record. The Judge may also receive 

further evidence, recall witnesses or recommit the matter to the 

Magistrate Judge with instructions. 

Dated: September 12, 2016 s/Gerald B. Cohn 

 GERALD B. COHN 

 UNITED STATES MAGISTRATE JUDGE 

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