IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL BRYANT, : Civil No. 4:14-CV-981

:

 Plaintiff, :

: (Magistrate Judge Carlson)

 v. :

:

CAROLYN W. COLVIN, :

Commissioner of Social Security :

:

Defendant. :

 MEMORANDUM OPINION

I. INTRODUCTION

The plaintiff, Michael Bryant, appeals from the unfavorable decision of the

Commissioner of Social Security denying him benefits under Titles II and XVI of the

Social Security Act. The jurisdiction of this Court is invoked pursuant to 42 U.S.C.

§405(g) and 42 U.S.C. §1383(c)(3). This matter has been referred to the undersigned

United States Magistrate Judge for resolution on consent of the parties, pursuant to

the provisions of 28 U.S.C. §636(c) and Rule 73 of the Federal Rules of Civil

Procedure. (Docs. 17, 18). 

For the reasons stated herein, we order that the final decision of the

Commissioner be AFFIRMED.

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II. BACKGROUND AND PROCEDURAL HISTORY

At the time of this disability determination Michael Bryant was a younger

individual under social security regulations, and was 46 years of age. On March 25,

2011, Bryant was assaulted while shopping. Bryant reported that he was hit in the 1

head and back multiple times, and complained of headache, left mid back pain, and

left thumb pain. (Admin Tr. 287-88). Bryant also stated that he had a tooth knocked

out, and broke two ribs during the assault. (Admin Tr. 59). This assertion, however,

is belied by several unremarkable diagnostic imaging studies performed that day,

including a CT scan of Bryant’s head, x-rays of his chest, an x-ray of his thumb, that

showed no evidence of fracture. (Admin Tr. 280, 290-91). During a follow up

appointment four days later, Bryant reported that he wasfeeling better, but continued

to experience pain on the left side of his chest every time he took a deep breath. 

(Admin Tr. 280). Bryant was given an injection for the pain, and was provided with

ibuprofen. Id. 

While the circumstances of this assault are shrouded in some confusion, 1

Bryant reports that his assailant was a young man Bryant had encountered on only

one occasion two years earlier. At the time of their first encounter Bryant was

managing a fast food restaurant and alleges that he was forced to call police when an

irate customer (the assailant) threatened violence against him. In Bryant’s account,

Bryant and his former customer apparently reunited on a public bus, where the

assailant angrily informed Bryant that their last altercation resulted in the customer

being placed on probation for five years. The assailant is alleged to have followed

Bryant into a store where he physically assaulted him.

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On August 11, 2011, Bryant protectively filed Title II and Title XVI

applicationsfor Disability Insurance Benefits and Supplemental Security Income. In

both applications Bryant alleged that he became unable to work on March 24, 2011,

at the time of this assault, due to depression, right hip problems, back pain, and HIV. 

(Admin Tr. 220). 

On October 13, 2011, almost seven months after the assault, Bryant presented

to Certified Physician’s Assistant(“PA-C”) Anessa Inman with complaints of middle

and lower back pain. (Admin Tr. 323). Bryant initially reported that this pain was

of gradual onset, and that his pain began approximately nine years ago. Id. He later

clarified this statement in a way which tied his complaints to the onset of his claimed

disability, alleging that he had lower back pain with radiation to the hips prior to the

assault, but that his pain became much worse after the assault. (Admin Tr. 295). On

examination, Bryant had a normal gait, normal lumbar lordosis, no tenderness to the

lumbar spine on palpation, and a normal range of motion in the lumbar spine. 

(Admin Tr. 323). Bryant’s lower extremities were also normal on inspection, with

normal palpation and range of motion, normal strength, and no joint instability –

except that the straight leg raise test showed less than 60 degrees of flexion on the

right side. Id. An x-ray of Bryant’s lumbar spine taken five days later revealed only

mild degenerative changes. (Admin Tr. 322).

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On November 2, 2011, Bryant presented to Certified Registered Nurse

Practitioner (“CRNP”) Marcia Ludlow with complaints of chronic lower back pain. 

(Admin Tr. 321). Bryant also reported that he tested HIV positive in 1999. (Admin

Tr. 321). Bryant was referred to orthopedics for treatment of his back pain, and was

referred to infectious disease specialist Alina Popa for treatment of probable HIV

exposure. (Admin Tr. 320). On November 21, 2011, it was confirmed that Bryant

was HIV positive, but that he was asymptomatic. (Admin Tr. 320). In addition to

providing treatment for Bryant’s HIV, Dr. Popa also prescribed medications to treat

Bryant’s mental impairments. (Admin Tr. 317). 

On December 9, 2011, at the Social Security Administration’s behest, Bryant

was examined by Dr. Thomas McLaughlin. During the examination, Bryant

complained of low back pain with radiation to the hips, and intermittent neck pain

withoutradiation orradicular symptoms. (Admin Tr. 295-96). Dr. McLaughlin noted

that Bryant ambulated with a normal gait, was able to stand unassisted, rise from a

seated position, and step up and down from the examination table without difficulty,

but was not able to stand on one foot at a time. (Admin Tr. 297, 299). Dr.

McLaughlin also noted thatstraight leg raise was positive on the right to fifty degrees

of elevation. Id. Bryant was unable to heel walk, toe walk, or walk heel to toe, and

did not attempt to squat. (Admin Tr. 299). Examination of the cervical spine

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revealed no tenderness, and no evidence of paravertebral muscle spasm. Id. 

Examination of the hipsrevealed no tenderness, redness, warmth, swelling, effusion,

laxity, crepitus, or clicks. Id. Examination of Bryant’s dorsolumbar spine revealed

tenderness over the paravertebral muscle areas. Id. Based solely on his own

observations from a one-time examination and without an opportunity to review any

of Bryant’s medical records, Dr. McLaughlin diagnosed Bryant with low back pain

secondary to lumbar degenerative spine disease possible disc on the right, right hip

pain likely secondary to trauma and degenerative joint disease, HIV positive, Asthma

history (quiescent now), hypertension, and tobacco use. (Admin Tr. 300). 

In a medical source statement, Dr. McLaughlin opined that Bryant could:

frequently lift or carry 2-3 pounds and occasionally lift or carry ten pounds; stand and

walk up to two hours per eight-hour workday; sit up to eight hours per workday with

alternating sitting and standing at will; and never bend, kneel, stoop, crouch, balance,

or climb. (Admin Tr. 302-03). Dr. McLaughlin also opined that Bryant could push

or pull with his extremities within his lift/carry limitations without further restriction,

and should avoid exposure to heights. Id.

Given this medical backdrop, Bryant’s social security claims were denied

initially on December 21, 2011. Thereafter, Bryant requested, and was granted, an

opportunity to have his claims evaluated during an administrative hearing. 

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On January 10, 2012, prior to his administrative hearing, Bryant presented to

the emergency department. (Admin Tr. 357). Bryant was voluntarily admitted for

inpatient psychiatric care due to his worsening depression and suicidal thoughts that

were exacerbated by the recent death of his mother. (Admin Tr. 352). On admission,

a clinician initially assigned him a global assessment of functioning score of 25. 

(Admin Tr. 347). Hospital records reflect that Bryant had previously been admitted

for inpatient care at the same facility in 2006, and Bryant reported several previous

admissions in Georgia. Id. Bryant also reported a history of drug overdose in the late

1990's. Id. While receiving inpatient psychiatric care in 2012, Bryant was diagnosed

with major depression and post-traumatic stress disorder, and was restarted on his

medications. (Admin Tr. 344). His emotional and mental state rapidly improved and

Bryant was discharged on January 12, 2012, with a GAF score of 65. Id. 

On February 27, 2013, Bryant, with the assistance of counsel, appeared and

testified at an administrative hearing in Harrisburg, Pennsylvania before

Administrative Law Judge (“ALJ”) Randy Riley. Impartial vocational expert (“VE”)

Paul A. Anderson also appeared and testified. Specifically, Bryant testified that he

was unable to bend down and touch his toes, could not squat, could climb up to three

flights of stairs, preferred not to climb ladders, could walk three blocks without

resting, could stand up to ten minutes at one time, and could sit for up to one hour at

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a time. (Admin Tr. 56-58, 232-33, 235). Bryant also reported that the symptoms

related to his mental impairments worsened after the March 2011 assault. (Admin Tr.

61-62). Bryant reported that he experiences anger, suicidal thoughts, auditory

hallucinations, racing thoughts, lack of energy, focal deficits, and difficulty

concentrating. (Admin Tr. 67-70, 232-33). Bryant also testified that, following the

assault, he developed a mistrust of strangers. Id. Bryant asserted that he could not

sit through an entire television program because “it gets boring after awhile,” but

could read anything. (Admin Tr. 69, 232, 273). Despite his impairments, Bryant

reported that he maintained his own personal hygiene, cooked “at times,” did dishes

“at times,” did laundry, occasionally took out trash. (Admin Tr. 55-56, 228-29). 

Bryant also testified that he does not have a driver’s license, and had a friend drop

him off in Camp Hill, Pennsylvania at the Market Street Bridge and walked to his

hearing in downtown Harrisburg, Pennsylvania, a significant distance to traverse on

foot. (Admin Tr. 56).

On March 20, 2013, the ALJ denied Bryant’s applications for benefits in a

written decision. In so doing, the ALJ found that Bryant met the insured status

requirement of Title II of the Social Security Act through December 31, 2012, and

then proceeded through steps one through five of the five-step sequential evaluation

process. At step one, the ALJ found that Bryant did not engage in substantial gainful

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activity between March 24, 2011, and March 20, 2013. (Admin Tr. 40). At step two,

the ALJ found that Bryant has the medically determinable severe impairments of

degenerative disc disease, HIV, depression, and post-traumatic stress disorder

(“PTSD”). Id. At step three, the ALJ found that Bryant did not have an impairment

or combination of impairments that met or medically equaled the severity of one of

the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix I. Id. 

Before proceeding to step four, the ALJ found that Bryant had the residual

functional capacity to perform light work as defined in 20 C.F.R. §§404.1567(b) and

416.967(b) except that he requires:

a sit/stand option at will; is limited to occasional stairs, balancing,

stooping, kneeling, crouching and crawling;should never climb ladders;

must avoid concentrated exposure to hazards; and is limited to simple,

routine, repetitive tasks, no interaction with the public and occasional

interaction with coworkers but no tandem tasks.

(Admin Tr. 41-42). In doing so, the ALJ was required to weigh the medical and

nonmedical source opinions of record in accordance with 20 C.F.R. § 404.1527 and

SSRs 96-2p, 96-5p, 96-6p, and 06-3p. The record in this case contains only one such

opinion, by nontreating physician Dr. McLaughlin. 

2

In his brief Bryant refers to a second RFC assessment by a nonexamining

2

source. (Doc. 11 p. 12). Our review of the record, however, reveals that the

assessment he refers to was completed by a single decision-maker (“SDM”). (See

Admin Tr. 82-84). Courts have observed that a SDM is not a medical professional,

and that such opinions are entitled to no evidentiary weight. See Yorkus v. Astrue,

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At step four, relying on testimony by the VE, the ALJ found that Bryant was

unable to perform his past relevant work as a fast food manager, warehouse worker,

or cook because the physical or mental demands of each position exceeded what the

ALJ determined to by Bryant’s current functional capacity. (Admin Tr. 44).

At step five, after making additional factual findings regarding Bryant’s age,

education, and work experience, and considering these factors together with Bryant’s

current functional capacity, the ALJ found that Bryant could perform “other work.”

(Admin Tr. 44-45). The ALJ’s determination in this regard was based largely upon

testimony by the VE that Bryant could perform the occupations of injection molding

machine tender (DOT 556.685-038) and sewing machine operator (DOT 786.685-

030). Id. The VE also testified that the positions would (collectively) existed in

2,600 jobs in the local economy, 26,000 jobs in the regional economy, and 560,000

jobs in the national economy. Id. Based on this testimony, the ALJ concluded that

the “other work” that Bryant could perform existed in significant numbers in the

national economy. As such, Bryant was deemed to be “not disabled.” Id. 

Thereafter, Bryant sought review of the ALJ’s decision by the Appeals

Council. Together with his request for review, Bryant submitted new evidence that

was not before the ALJ when he issued his decision. On April 2, 2014, the Appeals

No. 10-2197, 2011 WL 7400189, at *4 (E.D.Pa. Feb. 28, 2011). 

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Council denied Bryant’s request for review, and noted that the new evidence did not

pertain to the period under review – March 24, 2011 through March 20, 2013. 

Bryant then initiated this action by filing a complaint on May 22, 2014. (Doc.

1). In his complaint, Bryant urges us to reverse the adverse decision of the

Commissioner and enter an order awarding benefits, or in the alternative, remand this

case to the Commissioner for a new hearing. On July 30, 2014, the Commissioner

filed her answer to Bryant’s complaint. (Doc. 7). In her answer, the Commissioner

asserts that the ALJ’s decision is supported by substantial evidence, and is in

accordance with the law and applicable regulations. Together with her answer, the

Commissioner filed a copy of the administrative record from below. (Doc. 8). 

Having been fully briefed by the parties, this matter is now ripe for decision. 

(Docs.11, 14, 15). 

III. DISCUSSION

Bryant asserts that the ALJ’s conclusion that he is “not disabled” is not

supported by substantial evidence for two reasons. First, Bryant asserts that the

ALJ’s consideration of the report and medicalsource statement of examining, though

nontreating, source Dr. McLaughlin is not in accordance with the applicable

regulatory framework, and in the alternative, lacked adequate explanation. (Doc. 11

pp. 7-10, Doc. 15 pp. 1-3). Second, Bryant asserts that the ALJ’s RFC assessment

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does not comport with his obligations under Social Security Ruling (“SSR”) 96-8p. 

(Doc. 11 pp. 10-13, Doc. 15 pp. 3-7). 

A. STANDARDS OF REVIEW–THE ROLES OF THE ADMINISTRATIVE LAW

JUDGE AND THIS COURT

Resolution of the instant social security appeal involves an informed

consideration of the respective roles of two adjudicators–the ALJ and this court. At

the outset, it isthe responsibility of the ALJ in the first instance to determine whether

a claimant has met the statutory prerequisites for entitlement to benefits. To receive

disability benefits, a claimant must present evidence which demonstrates that the

claimant has an inability to “engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for a continuous period

of not lessthan 12 months.” 42U.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). 

Furthermore, 

[a]n individualshall be determined to be under a disability only if his [or

her] physical or mental impairment or impairments are of such severity

that he [or she] is not only unable to do his [or her] previous work but

cannot, considering his [or her] 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 [or she] lives, or whether a specific job

vacancy exists for his [or her], or whether he [or she] would be hired if

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he [or she] applied for work. For purposes of the preceding sentence

(with respect to any individual), “work which exists in the national

economy” means work which exists in significant numbers either in the

region where such individual lives or in several regions of the country. 

42 U.S.C. § 423(d)(2)(A); 42 U.S.C. §1382c(A)(3)(B); see also 20 C.F.R.

§§404.1505(a), 416.905(a). Last, to qualify for benefits under Title II of the Social

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

program and became disabled prior to the date on which he or she was last insured. 

42 U.S.C. §423(a); 20 C.F.R. §404.131(a). 

1. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

In making this determination the ALJ employs a five-step evaluation process

to determine if a person is eligible for disability benefits. See 20 C.F.R. §§ 404.1520,

416.920; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). If the ALJ

finds that a Bryant is disabled or not disabled at any point in the sequence, review

does not proceed any further. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). As

part of this analysis 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’s impairment preventsthe claimant from doing

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past relevant work; and (5) whether the claimant’s impairment prevents the claimant

from doing any other work. Id. 

Before considering step four in this process, the ALJ must also determine the

claimant’s residual functional capacity. 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC

is defined as “that which an individual isstill 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. §§ 404.1545, 416.945. In making

this assessment, the ALJ considers all of the claimant’s impairments, including any

medically determinable nonsevere impairments. 20 C.F.R. §§ 404.1545(a)(2),

416.945(a)(2). This disability determination involvesshifting burdens of proof. The

initial burden rests with the claimant to demonstrate that he orshe is unable to engage

in past relevant work. If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person with the claimant's

abilities, age, education, and work experience can perform. Mason v. Shalala, 994

F.2d 1058, 1064 (3d Cir. 1993).

The ALJ’s disability determination must also meet certain basic procedural and

substantive requirements. 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

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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 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 [or she] has rejected and which he [or she] is

relying on as the basis for his [or her] finding.” Schaudeck v. Comm’r of Soc. Sec.,

181 F.3d 429, 433 (3d Cir. 1999).

2. GUIDELINES FOR THE ALJ’S ASSESSMENT OF MEDICAL

SOURCE OPINIONS

During the course of this sequential evaluation process, the ALJ is faced with

the complex and delicate task of weighing or considering opinions by medical

sources. The Social Security regulations define “medical opinions” as “statements

from physicians and psychologists or other acceptable medical sources that reflect

judgments about the nature and severity of [the claimant’s] impairment(s), including

... symptoms, diagnosis and prognosis, what [the claimant] can still do despite [his

or her] impairment(s), and ... physical or mental restrictions.” 20 C.F.R.

§§404.1527(a)(2), 416.927(a)(2). The SocialSecurityRegulations define “acceptable

medicalsources” aslicensed physicians, licensed or certified psychologists, licensed

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podiatrists, and qualified speech-language pathologists. 20 C.F.R. §§404.1513,

416.913. 

It is clearly within the ALJ’s authority to choose whom to credit when the

record contains conflicting medical opinions. Morales v. Apfel, 225 F.3d 310, 317

(3d Cir. 2000). However, since it is apparent that the ALJ “cannot reject evidence for

no reason or the wrong reason.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.

1999)(citing Mason, 994 F.2d at 1066), the ALJ must also provide an explanation as

to why opinion evidence by acceptable medical sources has been rejected so that a

reviewing court can determine whether the reasons for rejection were proper. Cotter,

642 F.2d at 707. 

The Social Security rulings and regulations provide a framework under which

medical opinion evidence must be considered. At the outset, we note that the Social

Security Regulations discuss the nature of an acceptable medical source’s treatment

relationship with the claimant in terms ofthree broad categories: treating; examining;

and non-examining. The Social SecurityRegulations also express a clear preference 3

A treating source is defined as an acceptable medical source who provides or 3

has provided a claimant with medical treatment or evaluation, and who has or had an

ongoing treatment relationship with the claimant. 20 C.F.R. §§404.1502, 416.902. 

A nontreating source is defined as an acceptable medical source that has examined

the claimant but did not have an ongoing treatment relationship – like a consultative

examiner. Id. A nonexamining source is defined as an acceptable medicalsource that

has not examined the claimant, but has provided an opinion in the case – like a state

agency reviewing doctor. Id. 

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for opinions by treating sources. See Morales, 225 F.3d at 317 (“a cardinal principle

guiding disability eligibility determinations is that the ALJ accord treating

physicians’ reports great weight, especially when their opinions reflect expert

judgment based on a continuing observation over a prolonged period of time.”). 

Pursuant to 20 C.F.R. §§404.1527(c)(2) and 416.927(c)(2): 

if [the ALJ] find[s] 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 in [the claimant’s]

case record, [the ALJ] will give it controlling weight.

Id.; see also SSR 96-2p. Furthermore, finding that the medical opinion of a treating

source is not entitled to controlling weight does not mean the opinion should be

rejected. SSR 96-2p, 1996 WL 374188, at *1. In many cases, a treating source’s

medical opinion will be entitled to great deference even where it is found to be noncontrolling. Id. 

Where the ALJ finds that no treating source opinion is entitled to controlling

weight, the regulations provide that the weight of all non-controlling opinions by

treating, nontreating, and nonexamining medical sources should be evaluated based

on the following factors: (1) the length of treatment and frequency of examination;

(2) the nature and extent of the treatment relationship; (3) the opinion’s support by

medical evidence; (4) the opinion’s consistency with the record as a whole; and (5)

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the treating physician’s specialization. 20 C.F.R. §§404.1527(c), 416.927(c). In

addition, the ALJ should consider any other factors that tend to support or contradict

the opinion that were brought to his or her attention. 20 C.F.R. §§404.1527(c)(6),

416.927(c)(6). 

3. JUDICIAL REVIEW OF ALJ DETERMINATIONS–STANDARD OF

REVIEW

Once the ALJ has made a disability determination, it is then the responsibility

of this Court to independently review that finding. In undertaking this task, this

Court applies a specific, well-settled and carefully articulated standard of review. In

an action under 42 U.S.C. § 405(g) or 42 U.S.C. §1383(c)(3) to review the decision

of the Commissioner of Social Security denying a claim for disability benefits, the

“findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive[.]” 42 U.S.C. § 405(g). 

The “substantial evidence” standard of review prescribed by statute is a

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

When reviewing the denial of disability benefits, we must simply determine whether

the denial is supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211,

1213 (3d Cir. 1988); see also Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d

Cir. 2008). Substantial evidence “does not mean a large or considerable amount of

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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). 

It islessthan a preponderance of the evidence but more than a mere scintilla of proof. 

Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence means "such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion." Plummer, 186 F.3d at 427 (quoting Ventura v. Shalala, 55 F.3d 900,

901 (3d Cir. 1995)). 

A single piece of evidence is not substantial evidence if the ALJ ignores

countervailing evidence or failsto resolve a conflict created by the evidence. Mason,

994 F.2d at 1064. However, 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

decision] from being supported by substantial evidence." Consolo v. Federal

Maritime Comm'n, 383 U.S. 607, 620 (1966). In determining if the ALJ's decision

is supported by substantial evidence the court may not parse the record but rather

must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir.

1981); Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D.Pa. 2003). The question

before this Court, therefore, is not whether Bryant has been disabled since November

4, 2011, but whether the Commissioner’s finding that he was not disabled prior to

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April 1, 2012, 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 mattersis plenary); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D.Pa.

2012)(“[T]he court has plenary review of all legal issues . . . .”). 

B. THE ALJ PROPERLY ASSESSED THE MEDICAL SOURCE OPINION

OF DR. MCLAUGHLIN UNDER THE FRAMEWORK ARTICULATED IN

20 C.F.R. §§404.1527(C) AND 416.927(C)

In his decision, the ALJ explained his consideration of Dr. McLaughlin’s

medical source statement as follows:

... Dr. McLaughlin assessed the claimant with the capacity for a range

of sedentary work, with a sit/stand opinion and total restriction of

postural activities. The objective clinical findings do not support the

claimant is this limited. There is no evidence of serious spinal

pathology, upper extremity abnormalities, or a level of care to support

such extreme limitations. Therefore, the undersigned gives this opinion

little weight. Further the vocational expert identified jobs existing in

significant numbers that the claimant could perform even with this

extremely limited residual functional capacity.

(Admin Tr. 44). Bryant contendsthat above-cited passage does not provide sufficient

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explanation to permit judicial review, and that the ALJ’s decision to discount Dr.

McLaughlin’s medicalsource statement failsto adequately account for the regulatory

factors outlined in 20C.F.R. §§404.1527(c) and 416.927(c). (Doc. 11 pp. 7-10, Doc.

3

15 pp. 1-3). We disagree. 

As discussed above, although an ALJ may weigh the credibility of conflicting

medical evidence, he must give some indication the evidence he orshe rejects and his

or her reasons for discounting that evidence. See Fargnoli v. Massanari, 247 F.3d 34,

43 (3d Cir. 2001). An explanation is required so that the reviewing court can

Bryant also contends that the ALJ’s consideration of this opinion violates the

3

tenets of 20 C.F.R. §§404.1527(f), 416.927(f), and SSR 96-6p. We note that 20

C.F.R. §§404.1527(f) and 416.927(f) do not exist. Section f of 20 C.F.R. §§404.1527

and 416.927 were redesignated 20 C.F.R. §§404.1527(e) and 416.927(e) in early

2012. See How We Collect and Consider Evidence of Disability, 77 Fed.Reg. 10651-

01, 10656 (Feb 23, 2012)(codified at 20 C.F.R., pt. 404 and 416). Further, 20 C.F.R.

§§404.1527(e) and 416.927(e) apply only to nonexamining sources. Accordingly,

because these provisions are inapplicable to Dr. McLaughlin (an examining source),

we find that Bryant’s argument that the ALJ has violated these provisions lack merit. 

Similarly, SSR 96-6p addresses only the consideration of nonexamining source

opinions. It is unclear whether this ruling has any bearing on an ALJ’s consideration

of an opinion by a nontreating source who has examined the claimant. Even if it

does, the ruling provides additional guidance asto how nonexaminingmedicalsource

opinions should be weighed in accordance with the factors articulated in 20 C.F.R.

§§404.1527(c) and 416.927(c). Because it is clear that the factors outlined in 20

C.F.R. §§404.1527(c) and 416.927(c) also apply to nontreating sources as well as

nonexamining ones, we will construe Bryant’s argument as raising the issue of

whether the ALJ properly considered these regulatory factors in weighing the opinion

of a nontreating medical source who has examined the claimant – instead of an

argument under SSR 96-6p.

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determine whether the reasons for rejection were proper. Cotter, 642 F.2d 707. To

say that a decision is supported by substantial evidence in absence of such an

indication approaches an abdication of the court’s duty to scrutinize the record as a

whole and determine whether the conclusions reached are rational. Id. at 705. Here,

the ALJ’s discussion clearly, albeit succinctly, explains that he discounted Dr.

McLaughlin’s medical source statement because it was unsupported by Dr.

McLaughlin’s clinical findings, and because it was inconsistent with the objective

medical records –which we note were not available to Dr. McLaughlin. (See Admin

Tr. 300). Those medicalrecords, which Dr. McLaughlin did not see, included a series

of unremarkable clinical findings, findings that did not support the claimof disability

voiced by Bryant. Given this other, substantial evidence, we find that the ALJ has

met his obligation to sufficiently explain his decision to partially discount Dr.

McLaughlin’s medical source statement. We also find that this rationale is a proper

basis to discount a medicalsource opinion under the Social Security regulations. See

20 C.F.R. §§404.1527(c)(4), 416.927(c)(4)(“the more consistent an opinion is with

the record as a whole, the more weight we will give to that opinion.”); 20 C.F.R.

§§404.1527(c)(3), 416.927(c)(3)(“The more a medical source presents relevant

evidence to support an opinion ... the more weight we will give that opinion.”). 

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Next we must turn our attention to whether substantial evidence supports this

interpretation of the evidence, and we find that it does. In his examination report, 4

Dr. McLaughlin observed that Bryant: ambulated normally without aid; could stand

unassisted; could rise from a seated position without difficulty; and exhibited no

tenderness, muscle weakness, loss of motor strength, or atrophy in his shoulders,

elbows and wrists. (Admin Tr. 297, 299-300). These findings do not suggest that

Bryant has any radical lift or carry restriction. Consistent with the ALJ’s opinion,

diagnostic imaging revealed only “mild” degenerative changes in Bryant’s spine,

(Admin Tr. 292), and treatment records do not document any loss of function or

exacerbation of his pain when lifting or carrying objects, though he did report that his

condition was aggravated by sitting or coughing. (Admin Tr. 323). Last, Bryant

Bryant also suggests that the ALJ improperly relied on his own lay opinion to 4

discount Dr. McLaughlin’s medical source statement. (Doc. 11 p. 8). In support of

this argument, Bryantrelies on the ThirdCircuit case of VanHorn v. Schweiker where

it was found that an ALJ improperly relied on his own observations regarding a

claimant’s emotional state to discount the otherwise consistent medical source

opinions of record. 717 F.2d 871, 873-74 (3d Cir. 1983). The facts of this case,

however, are clearly distinguishable. Unlike in VanHorn, the ALJ’s decision in this

case is not colored by his own observations or speculative medical judgments. As

noted herein, the ALJ relied on objective evidence (diagnostic imaging studies), a

lack of any objective documentation for the physical symptoms alleged, and the

conservative course of treatment recommended by treating sources to conclude that

Bryant was not as limited as he alleged or as limited as Dr. McLaughlin – without

having the benefit of these records – believed. As such, we find that Bryant’s

suggestion that the ALJ improperly relied on his own expertise over that of a medical

source lacks any arguable merit.

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reported that he was able to perform certain household chores which involved lifting

and carrying objects and postural maneuversthat exceed the limitations advocated by

Dr. McLaughlin – i.e. doing laundry, taking out and burning bags of garbage,

cooking, and doing dishes. (Admin Tr. 55-56). 

C. THE ALJ’S RFC ASSESSMENT IS SUPPORTED BY SUBSTANTIAL

EVIDENCE

Bryant alleges that the ALJ improperly assessed his residual functional

capacity in violation of SSR 96-8p. (Doc. 11 p. 11). In this respect, Bryant’s

argument is twofold. First he asserts that substantial evidence does not support the

ALJ’s conclusion that he can engage in light work. (Doc. 11 pp. 11-13). Second,

Bryant asserts that the ALJ’s RFC assessment is fatally flawed due to the failure to

address Bryant’s difficulties in concentration, persistence or pace. Id. at 13-14.

1. THE ALJ’S CONSIDERATION OF BRYANT’S PHYSICAL

LIMITATIONS IS SUPPORTED BY SUBSTANTIAL EVIDENCE

Light work is defined as work that involveslisting no more than twenty pounds

at a time with frequent lifting or carrying of objects weighing up to ten pounds. See

20 C.F.R. §§404.1567(b), 416.937(b); SSR 83-10, 1983 WL 31251 at *5-6

(explaining the definition of light work). To be able to carry objects on a frequent

basis, an individual be capable of standing or walking for a total of six hours per

eight-hour workday. Id. Bryant contends that the ALJ’s conclusion that he can

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physically meet these exertional demandsis unsupported. We are constrained to note,

however, that the ALJ did not conclude that Bryant could meet all of these exertional

demands. Instead, the ALJ’s decision reflected an assessment and incorporation of

some limitations described by Bryant,when those limitations were supported by other

evidence. (Doc. 11 pp. 11-13, Doc. 15 pp. 3-5). Further, we find that Bryant’s 

assertion that he cannot perform the limited range of light work identified by the ALJ

is meritless. 

In this context, the term “exertional activity” refers to one of the primary

strength activities – sitting, standing, walking, lifting, carrying, pushing, or pulling. 

SSR 83-10, 1983 WL 31251 at *5. Here, the ALJ found that Bryant could meet the

full lifting and carrying requirements of light work, but could not meet the standing

and walking requirements. Bryant accurately notes that, in his medical source

statement, Dr. McLaughlin opined that Bryant’s lift and carry limitations were

consistent with sedentary, rather than light, work. Thus, we must consider whether

substantial evidence supports the ALJ’s finding that Bryant retains a greater than

sedentary aptitude for lifting and carrying objects. 

At the outset, we have already found that the ALJ cited a proper basis to

discount Dr. McLaughlin’s opinion – the evidence that forms the foundation of

Bryant’s argument – and that the ALJ’s decision to discount Dr. McLaughlin’s

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opinion is supported by substantial evidence. Further, we find that aside from Dr.

McLaughlin’s opinion, the record is devoid of any further support for Bryant’s

assertions regarding his claimed limitations on lifting and carrying objects. As noted

above, Bryant did not report any difficulty lifting or carrying objects to his treating

sources. Instead, he reported that his back pain was exacerbated by coughing, sitting,

bending, standing, or walking for awhile. (Admin Tr. 235, 323). At the hearing

Bryant testified that he does laundry and occasionally takes out trash. He did not

suggest that he had any difficulty lifting trash bags or laundry. Further, examination

records reflect that there was no evidence of nerve root compression, motor loss,

neurological defects or muscle weakness in his extremities, and that Bryant had

adequate grip strength, was able to make a fist, open a jar, open a door, pick up coins,

write, and use both hands to button and unbutton. Accordingly, we find that, because

Bryant failed to show any evidence to support further limitation in the areas of lifting

or carrying, and because there is some evidence in the record that suggests greater

aptitude in these areas than alleged, we find that the ALJ’s assessment is supported

by substantial evidence.

Next, we turn our attention to the issue of whether a sit/stand option precludes

the performance of light work. As noted by Bryant, he testified that he could walk

up to three blocks at a time, could stand up to ten minutes at a time, and could sit up

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to one hour at a time. (Admin Tr. 57-58). The ALJ, apparently crediting this portion

ofBryant’s testimony and Dr. McLaughlin’s medicalsource statement, imposed a sitstand option. SSR 83-12 recognizes that if “the medical facts lead to an assessment

of RFC which [is] compatible with the performance of either sedentary or light work

except that the person must alternate periods of sitting and standing,” then the

“individual is not functionally capable of doing either the prolonged sitting

contemplated in the definition of sedentary work ... or the prolonged standing or

walking contemplated for most light work.” In such scenarios, it is recommended

that the adjudicator consult a vocational resource to clarify the implications for the

occupational base. SSR 83-12. The ALJ did so in this case. The VE identified

several occupations within the realm of light work that an individual who – among

other exertional and nonexertional limitations – must be permitted to sit and stand at

will, could perform. Thus, to the extent Bryant suggests that an inability to stand for

prolonged periods – when accompanied by an inability to sit for prolonged periods

– automatically precludesthe performance of all light work, the VE’s testimonybelies

his argument.

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2. THE ALJ PROPERLY ACCOUNTED FOR PLAINTIFF’S

CREDIBLY ESTABLISHED LIMITATIONS IN FUNCTIONAL AREA

OF CONCENTRATION, PERSISTENCE, OR PACE

In his decision, the ALJ also addressed Bryant’s nonexertional limitations at

step three, and in his RFC assessment. At step three, the ALJ found that Bryant had

moderate difficulties in concentration, persistence, or pace due to decreased

motivation, interest and concentration, but noted that Bryant was otherwise able to

read, watch television, and perform basic activities of daily living, and that he

retained sufficient ability to understand and carry out simple tasks and routines. 

(Admin Tr. 41). Then in his RFC assessment, the ALJ limited Bryant to the

performance of “simple, routine, repetitive tasks” to account for these limitations.

(Id.) Bryant contends that the ALJ’s RFC assessment – and the hypothetical

questions posed to the VE – do not adequately account for his limitations in the area

of concentration, persistence, or pace. (Doc. 11 pp. 13-15, Doc. 15 pp. 5-7). Thus,

we are called upon to decide whether the phrase employed by the ALJ in his

hypothetical and RFC assessment – “simple, routine, repetitive tasks” – is sufficient

to convey the moderate limitationsin concentration, persistence, or pace found by the

ALJ at step three.

Courts have addressed this issue on multiple occasions. First, in Ramirez v.

Barnhart, the Third Circuit held that a finding that a claimant “often” experienced

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difficulty in concentration, persistence, or pace was not adequately conveyed where

the ALJ limited a claimant to simple one to two step tasks. 372 F.3d 546, 554 (3d

Cir. 2004). In subsequent administrative decisions, however, the Social Security

Administration amended the scale used to rate the degree of limitation in the area of

concentration, persistence or pace. The old scale was based on the frequency that a

limitation would impact a claimant’s activities (never, seldom, often frequent,

constant), 20 C.F.R. §§404.1520a(b)(3) (1999), 416.920a(b)(3) (1999), while the

current scale (used by the ALJ in this case) rates the overall severity of the limitation

itself (none, mild, moderate, marked, extreme). 20 C.F.R. §§404.1520a(c)(4),

416.920a(c)(4). Neither the Administration nor the Third Circuit has offered any

comment as to whether there is a correlation between the points on the frequency

scale and the points on the severity scale. 

The District Courts within this Circuit have addressed similar issuesfollowing

this regulatory change with varying results. At least one district court has found that

there is no correlation between the frequency and severity scales and questioned the

continuing validity ofRamirez in casesinvolving the application ofthe severity scale. 

See Rodgers v. Colvin, No. 13-75, 2014 WL 4748907, at *1 n. 1 (W.D.Pa. Sept. 24,

2014). Other district courts have found the opposite and have held that Ramirez still

applies because the terms “often” used in frequency regulations and the term

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“moderate” found in severity rules are equivalent. See Jury v. Colvin, 2014 WL

1028439 at *11 n. 21 (M.D.Pa. Mar. 14, 2014)(citing Strouse v. Astrue, No. 07-4514,

2010 WL 1047726, at *6 (E.D.Pa. Mar. 19, 2010); Dynko v. Barnhart, No. 03-cv3222, 2004 WL 2612260, at *5 (E.D.Pa. Nov. 16, 2004)). 

We need not address this dispute because, assuming arguendo that Ramirez

does apply in this case, there are material differences between the facts in this case

and Ramirez which lead us to conclude that the ALJ’s decision in this case should

still be affirmed. In Ramirez, a medical expert testified that the claimant’s anxiety

disorder could impair her ability to meet production quotas. Unlike in Ramirez, here

Bryant did not allege that his impairments affected his pace – and there is no medical

evidence that suggests otherwise. Similarly, in Ramirez, the VE testified that an

inability to meet production quotas would preclude the performance of all positions

identified, where as the VE did not make any similar assertion in this case. Thus,

unlike in Ramirez, where the Court found that the restriction to simple one to two step

tasks did not account for a credibly established limitation to the claimant’s ability to

maintain a production pace that would be acceptable to employers, there is no

evidence in this case that Bryant had such a limitation. Accordingly, we find that the

ALJ adequately accounted for the credibly established limitations that fall within the

broad functional area of concentration, persistence, or pace when he limited Bryant

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to the performance of simple, routine, repetitive tasks. See McDonald v. Astrue, 293

Fed.Appx. 941, 946-47 (3d Cir. 2008)(finding that the ALJ adequately accounted for

a moderate limitation in concentration, persistence or pace by limiting the claimant

to the performance of simple, routine tasks); Menkes v. Astrue, 262 Fed. Appx. 410,

412 (3d Cir. 2008)(finding that a restriction to simple routine tasks adequately

accounted for a claimant’s moderate limitationsin area of concentration, persistence,

or pace).

Thus, while we are sympathetic to the constellation of unfortunate events

which Mr. Bryant has experienced, given the deferential standard ofreview which we

must apply, we conclude that the ALJ’s decision rests upon substantial evidence

which has been adequately described and explained by the ALJ. These findings, in

turn, call for affirmance of that decision.

IV. CONCLUSION

Accordingly, for the foregoing reasons, we will affirm the decision of the

Commissioner.

An order consistent with this memorandum will be entered separately.

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