Page 1 of 26

 UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF PENNSYLVANIA 

KELLY R.,1

 Plaintiff 

 

 v. 

 

FRANK BISIGNANO,2

 

 Defendant 

) CIVIL ACTION NO. 4:23-CV-00685 

) 

) 

) 

) (ARBUCKLE, M.J.) 

) 

) 

MEMORANDUM OPINION 

I. INTRODUCTION 

Kelly R. is an adult who lives in the Middle District of Pennsylvania. She 

seeks judicial review of the final decision of the Commissioner of Social Security 

(“Commissioner”) denying her application for supplemental security income under 

Title XVI of the Social Security Act. Jurisdiction is conferred on this Court pursuant 

to 42 U.S.C. §1383(c)(3)(incorporating 42 U.S.C. §405(g) by reference). 

 This matter is before me upon consent of the parties pursuant to 28 U.S.C. 

§ 636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Doc. 7). After 

reviewing the parties’ briefs, the Commissioner’s final decision, and the relevant 

portions of the certified administrative transcript, we find the Commissioner's final 

1

 We adopt the recommendation of the Committee on Court Administration 

and Case Management of the Judicial Conference of the United States that federal 

courts refer to social security plaintiffs by their first name and last initial. 

2

 Frank Bisignano became the Acting Commissioner of Social Security on 

January 20, 2025. He is automatically substituted as a party pursuant to Fed. R. Civ. 

P. 25(d); see also 42 U.S.C. § 405(g). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 1 of 26
Page 2 of 26

decision is supported by substantial evidence. Accordingly, the Commissioner’s 

final decision will be AFFIRMED. 

II. BACKGROUND AND PROCEDURAL HISTORY 

On November 30, 2018, Plaintiff protectively filed an application for 

supplemental security income under Title XVI of the Social Security Act. (Admin. 

Tr. 111; Doc. 9-3, p. 37). In this application, Plaintiff alleged she became disabled 

on November 30, 2018, when she was forty-three years old, due to the following 

conditions: herniated disk in the neck and back; nerve damage; migraines; 

depression; PTSD; and acid reflux. (Admin. Tr. 307; Doc. 9-6, p. 6). Plaintiff alleges 

that the combination of these conditions affects her ability to lift, squat, bend, stand, 

walk, sit, kneel, climb stairs, see, and complete tasks. (Admin. Tr. 321; Doc. 9-6, p. 

20). Plaintiff attended school through the ninth grade. (Admin. Tr. 308; Doc. 7). 

Before the onset of her impairments, Plaintiff worked as a bus monitor at a school 

and a cashier in retail. (Admin. Tr. 308; Doc. 9-6, p. 7). 

On March 22, 2019, Plaintiff’s application was denied at the initial level of 

administrative review. (Admin. Tr. 138; Doc. 9-4, p. 5). On March 26, 2019, Plaintiff 

requested an administrative hearing. (Admin. Tr. 143; Doc. 9-4, p. 10). 

On November 9, 2020, Plaintiff and her counsel participated in a telephone 

hearing before Administrative Law Judge Daniel Balutis. (Admin. Tr. 33; Doc. 9-2, 

p. 34). On January 8, 2021, the ALJ issued a decision denying Plaintiff’s application 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 2 of 26
Page 3 of 26

for benefits. (Admin. Tr. 108; Doc. 9-3, p. 34). On February 4, 2021, Plaintiff 

requested that the Appeals Council of the Office of Disability Adjudication and 

Review (“Appeals Council”) review the ALJ’s decision. (Admin. Tr. 218; Doc. 9-4, 

p. 85). 

On September 14, 2021, the Appeals Council vacated the ALJ’s hearing 

decision and remanded Plaintiff’s case for a new hearing. (Admin. Tr. 130; Doc. 9-

3, p. 56). On January 25, 2022, Plaintiff and her counsel participated in a telephone 

hearing before the ALJ. (Admin. Tr. 67; Doc. 9-2, p. 68). On February 14, 2022, the 

ALJ issued a decision denying Plaintiff’s application for benefits. (Admin. Tr. 12; 

Doc. 9-2, p. 13). On February 14, 2022, Plaintiff requested that the Appeals Council 

review the ALJ’s decision. (Admin. Tr. 218; Doc. 9-4, p. 85). The Appeals Council 

denied review on February 24, 2023. (Admin. Tr. 1; Doc. 9-2, p. 2). 

On April 25, 2023, Plaintiff filed a complaint in federal court requesting 

judicial review of the Commissioner’s final decision. (Doc. 1). In the complaint, 

Plaintiff alleges that the ALJ’s decision denying her application is not supported by 

substantial evidence and contains errors of law. (Doc. 1, ¶¶ 18-19). As relief, 

Plaintiff requests that the court award benefits, or remand this matter to the Social 

Security Administration for further consideration. (Doc. 1). 

The Commissioner answered the complaint. (Doc. 8). In the answer, the 

Commissioner maintains that the decision denying Plaintiff’s application was made 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 3 of 26
Page 4 of 26

in accordance with the law and is supported by substantial evidence. (Doc. 8, ¶ 8). 

Along with his answer, the Commissioner filed a certified transcript of the 

administrative record. (Doc. 9). 

Plaintiff’s Brief (Doc. 10), the Commissioner’s Brief (Doc. 14), and 

Plaintiff’s reply have been filed. (Doc. 15). This matter is now ready to decide. 

III. LEGAL STANDARDS 

Before looking at the merits of this case, it is helpful to restate the legal 

principles governing Social Security Appeals, including the standard for substantial 

evidence review, and the guidelines for the ALJ’s application of the five-step 

sequential evaluation process. We will also discuss the framework an ALJ uses to 

evaluate medical opinions and prior administrative medical findings. 

A. SUBSTANTIAL EVIDENCE REVIEW – THE ROLE OF THIS COURT

A district court’s review of ALJ decisions in social security cases is limited to 

the question of whether the findings of the final decision-maker are supported by 

substantial evidence in the record.3

 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.”4

 Substantial evidence is 

3 See 42 U.S.C. § 405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 

200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). 

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

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 4 of 26
Page 5 of 26

less than a preponderance of the evidence but more than a mere scintilla.5 A single 

piece of evidence is not substantial if the ALJ ignores countervailing evidence or 

fails to resolve a conflict in the record.6

 In an adequately developed factual record, 

substantial evidence may be “something less than the weight of the evidence, and 

the possibility of drawing two inconsistent conclusions from the evidence does not 

prevent [the ALJ’s decision] from being supported by substantial evidence.”7

 When 

determining if the Commissioner’s decision is supported by substantial evidence 

under sentence four of 42 U.S.C. § 405(g), the court may consider any evidence that 

was in the record that was made before the ALJ.8

The Supreme Court has underscored the limited scope of district court review 

in this field, noting that: 

The phrase “substantial evidence” is a “term of art” used throughout 

administrative law to describe how courts are to review agency 

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––, 135 

S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence 

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

6 Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). 

7 Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966). 

8 Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001) (“when the Appeals 

Council has denied review the district court may affirm, modify, or reverse the 

Commissioner’s decision, with or without a remand based on the record that was 

made before the ALJ (Sentence Four review).”). The claimant and Commissioner 

are obligated to support each contention in their arguments with specific reference 

to the record relied upon. L.R. 83.40.4; United States v. Claxton, 766 F.3d 280, 307 

(3d Cir. 2014) (“parties . . . bear the responsibility to comb the record and point the 

Court to the facts that support their arguments.”); Ciongoli v. Comm’r of Soc. Sec., 

No. 15-7449, 2016 WL 6821082 (D.N.J. Nov. 16, 2016) (noting that it is not the 

Court’s role to comb the record hunting for evidence that the ALJ overlooked). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 5 of 26
Page 6 of 26

standard, a court looks to an existing administrative record and asks 

whether it contains “sufficien[t] evidence” to support the agency’s 

factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 

197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And 

whatever the meaning of “substantial” in other contexts, the threshold 

for such evidentiary sufficiency is not high. Substantial evidence, this 

Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 

402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It 

means—and means only—“such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Consolidated 

Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 

150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the 

substantial-evidence standard to the deferential clearly-erroneous 

standard).9

To determine whether the final decision is supported by substantial evidence, 

the court must decide not only whether “more than a scintilla” of evidence supports 

the ALJ’s findings, but also whether those findings were made based on a correct 

application of the law.10 In doing so, however, the court is enjoined to refrain from 

trying to re-weigh evidence and “must not substitute [its] own judgment for that of 

the fact finder.”11 

9 Biestek v. Berryhill, 587 U.S. 97, 102-103 (2019). 

10 See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. 

Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s errors of law denote a lack of 

substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512 F. Supp. 913, 

914 (W.D. Pa. 1981) (“The Secretary’s determination as to the status of a claim 

requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 

900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is 

plenary); Ficca, 901 F. Supp. 2d at 536 (“[T]he court has plenary review of all legal 

issues . . . .”). 

11 Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 6 of 26
Page 7 of 26

Furthermore, meaningful review cannot occur unless the final decision is 

adequately explained. As the Court of Appeals has noted on this score: 

In Burnett, we held that an ALJ must clearly set forth the reasons for 

his decision. 220 F.3d at 119. Conclusory statements . . . are 

insufficient. The ALJ must provide a “discussion of the evidence” and 

an “explanation of reasoning” for his conclusion sufficient to enable 

judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & 

n. 3 (3d Cir. 2004). The ALJ, of course, need not employ particular 

“magic” words: “Burnett does not require the ALJ to use particular 

language or adhere to a particular format in conducting his analysis.” 

Jones, 364 F.3d at 505.12

B. STANDARDS GOVERNING THE ALJ’S APPLICATION OF THE FIVESTEP SEQUENTIAL EVALUATION PROCESS

To receive benefits under the Social Security Act by reason of disability, a 

claimant must demonstrate 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 less than 12 months.”13 To satisfy this requirement, a 

claimant must have a severe physical or mental impairment that makes it impossible 

to do his or her previous work or any other substantial gainful activity that exists in 

the national economy.14 To receive benefits under Title II of the Social Security Act, 

a claimant must show that he or she contributed to the insurance program, is under 

12 Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009). 

13 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). 

14 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 7 of 26
Page 8 of 26

retirement age, and became disabled prior to the date on which he or she was last 

insured.15 Unlike disability insurance benefits under Title II of the Social Security 

Act, “[i]nsured status is irrelevant in determining a claimant’s eligibility for 

supplemental security benefits” under Title XVI of the Social Security Act.16

In making this determination at the administrative level, the ALJ follows a 

five-step sequential evaluation process.17 Under this process, the ALJ must 

sequentially determine: (1) whether the claimant is engaged in substantial gainful 

activity; (2) whether the claimant has a severe impairment; (3) whether the 

claimant’s impairment meets or equals a listed impairment; (4) whether the claimant 

is able to do his or her past relevant work; and (5) whether the claimant is able to do 

any other work, considering his or her age, education, work experience and residual 

functional capacity (“RFC”).18 

Between steps three and four, the ALJ must also assess a claimant’s RFC. 

RFC is defined as “that which an individual is still able to do despite the limitations 

caused by his or her impairment(s).”19 In making this assessment, the ALJ considers 

15 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a). 

16 Snyder v. Colvin, No. 3:16-CV-01689, 2017 U.S. Dist. LEXIS 41109, 

2017 WL 1078330, at *1 (M.D. Pa. Mar. 22, 2017). 

17 20 C.F.R. § 404.1520(a). 

18 20 C.F.R. § 404.1520(a)(4). 

19 Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) 

(citations omitted); see also 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a)(1). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 8 of 26
Page 9 of 26

all the claimant’s medically determinable impairments, including any non-severe 

impairments identified by the ALJ at step two of his or her analysis.20 

At steps one through four, the claimant bears the initial burden of 

demonstrating the existence of a medically determinable impairment that prevents 

him or her from engaging in any of his or her past relevant work.21 Once this burden 

has been met by the claimant, it shifts to the Commissioner at step five to show that 

jobs exist in significant number in the national economy that the claimant could 

perform that are consistent with the claimant’s age, education, work experience and 

RFC.22 

C. STANDARDS FOR THE ALJ’S EVALUATION OF MEDICAL OPINIONS &

PRIOR ADMINISTRATIVE MEDICAL FINDINGS 

When deciding whether to grant or deny an application for benefits, an ALJ 

is required to consider “all evidence” in the case record.23 How that evidence is 

considered and the extent to which an ALJ is required to articulate that consideration 

is dictated by the Commissioner’s regulations. Two types evidence of that often 

appear in social security case records are: (1) medical opinions; and (2) prior 

administrative medical findings.24 The framework governing an ALJ’s consideration 

20 20 C.F.R. § 404.1545(a)(2). 

2142 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. 

22 20 C.F.R. § 404.1512(b)(3); Mason, 994 F.2d at 1064. 

23 20 C.F.R. § 404.1520(a)(3); 20 C.F.R. § 416.920(a)(3). 

24 The Commissioner's regulations also carefully define these types of 

evidence. 20 C.F.R. § 404.1502(d) (defining medical source); 20 C.F.R. § 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 9 of 26
Page 10 of 26

of medical opinions and prior administrative medical findings is set forth in 20 

C.F.R. § 404.1520c and 20 C.F.R. § 416.920c. 

Turning to the question of how medical opinions and prior administrative 

medical findings are considered, under these regulations, an ALJ will “not defer or 

give any specific evidentiary weight, including controlling weight, to any medical 

opinion(s) or prior administrative medical finding(s), including those from your 

medical sources.”25 Instead, the persuasiveness of all medical opinions and prior 

administrative medical findings is evaluated based on the following factors: (1) 

supportability; (2) consistency; (3) relationship with the claimant (including the 

length of treatment, frequency of examination, purpose of the treatment relationship, 

extent of the treatment relationship, and examining relationship); and (4) 

specialization.26 The ALJ may also consider any other factors that “tend to support 

or contradict” a medical opinion or prior administrative medical finding, including 

but not limited to: a source’s familiarity with the other evidence in the claim, his or 

her understanding of the disability program and policies, and whether new evidence 

416.902(d) (same as 20 C.F.R. § 404.1502(d)); 20 C.F.R. § 404.1513(a)(2) 

(defining the types of statements that are medical opinions); 20 C.F.R. § 

416.913(a)(2) (same as 20 C.F.R. § 404.1513(a)(2)); 20 C.F.R. § 404.1513(a)(5) 

(defining prior administrative medical finding); 20 C.F.R. § 416.913(a)(5) (same as 

20 C.F.R. § 404.1513(a)(5)). 

25 20 C.F.R. § 404.1520c(a). 

26 20 C.F.R. § 404.1520c(c). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 10 of 26
Page 11 of 26

received after the opinion or finding was issued makes the opinion or finding more 

or less persuasive.27 Finally, when a single source provides multiple opinions or 

findings, those opinions or findings will be considered together.28

There is, however, a significant difference between what an ALJ is required 

to consider and what an ALJ is required to articulate.

29 The Commissioner’s 

regulations provide that, in most cases, the ALJ is only required to articulate how 

two factors are considered: supportability and consistency.30 Additional factors will 

only be discussed “as appropriate.”31 Finally, like the consideration of multiple 

opinions or findings by the same source, the ALJ will articulate how he or she 

evaluated them together.32

27 20 C.F.R. § 404.1520c(c). 

28 20 C.F.R. § 404.1520c(a). 

29 See Zaborowski v. Comm’r of Soc. Sec., No. 23-2637, 2024 U.S. App. 

LEXIS 23672, 2024 WL 4220691 (3d Cir. Sept. 18, 2024) (observing that when 

evaluating “medical opinions in Social Security matters, administrative law judges 

must consider a range of factors, but all they must explain are the reasons for their 

decisions.”). 

30 20 C.F.R. § 404.1520c(b)(2). 

31 20 C.F.R. § 404.1520c(b)(2); see also 20 C.F.R. § 404.1520c(b)(3) 

(explaining it is appropriate to explain how the other “most persuasive” factors 

were considered where two or more medical opinions or prior administrative 

medical findings about the same issue are equally well-supported and equally 

consistent with the case record). 

32 20 C.F.R. § 404.1520c(b)(1). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 11 of 26
Page 12 of 26

The sufficiency of an ALJ’s articulation of how supportability and 

consistency were considered is a frequently litigated issue. The consideration of an 

opinion or finding’s “supportability” involves a review of the objective medical 

evidence and supporting explanations that the source who issued that opinion or 

finding provides.33 The consideration of an opinion or finding’s “consistency” 

involves a review of evidence from other medical and nonmedical sources.34 Thus, 

it naturally follows that the articulation of how “supportability” and “consistency” 

were considered requires a discussion of supporting evidence and explanations given 

by the source of the opinion or finding, and the evidence from other medical and 

nonmedical sources, coupled with an explanation of how that evidence supports or 

contradicts the limitations set forth in a source's opinion or finding.35

Although it is helpful for the purposes of judicial review, nothing in 20 C.F.R. 

§ 404.1520c(b) requires that an ALJ use the words “supportability” or “consistency,” 

when articulating how those factors were considered.36 A mere summary of the 

33 20 C.F.R. § 404.1520c(c)(1). 

34 20 C.F.R. § 404.1520c(c)(2). 

35 See, e.g., Larkin v. O’Malley, No. CV 23-275-LDH, 2024 U.S. Dist. 

LEXIS 74140, 2024 WL 1675678, at *5 (D. Del. Mar. 28, 2024) (observing an 

ALJ adequately addressed supportability by noting the absence of a supporting 

explanation where a physician merely checked boxes for diagnoses and 

symptoms). 

36 Zaborowski, 2024 U.S. App. LEXIS 23672, 2024 WL 4220691, at *2 

(concluding an ALJ need not “reiterate the magic words ‘support’ and ‘consistent’ 

for each doctor,” and upholding an ALJ’s decision as consistent with 20 C.F.R. § 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 12 of 26
Page 13 of 26

source’s opinion or findings or a summary of the evidence with no analysis, 

however, does not satisfy an ALJ’s obligation under 20 C.F.R. § 404.1520c(b).37 A 

single sentence devoted to this explanation may not be enough.38 And the 

explanation must be clear enough that the Court can easily discern what evidence 

the ALJ is discussing in that articulation.39

404.1520(b)(2) where the ALJ wove “supportability and consistency throughout 

her analysis of which doctors were persuasive.”). 

37 Solberg v. O’Malley, No. CV 23-2639, 2024 U.S. Dist. LEXIS 79298, 

2024 WL 1943328, at *6 (E.D. Pa. Apr. 30, 2024); Alejandro v. O’Malley, No. 21-

CV-04076-RAL, 2024 U.S. Dist. LEXIS 71581, 2024 WL 1704904, at *4 (E.D. 

Pa. Apr. 18, 2024) (a conclusion that an opinion or finding is not persuasive 

unaccompanied by explanation is not sufficient); Khal v. Kijakazi, 2023 U.S. Dist. 

LEXIS 121214, 2023 WL 4546497, at *8-9 (E.D. Pa. July 13, 2023) (finding that 

general conclusions concerning a claimant’s RFC, a factual recitation of a 

physician’s treatment records, or a summary of other evidence in the record that 

appears somewhere in the ALJ’s decision does not meet an ALJ’s obligations 

under 20 C.F.R. § 404.1520c(b)). 

38 Andrews v. Kijakazi, No. 1:20-CV-01878, 2022 U.S. Dist. LEXIS 37111, 

2022 WL 617118, at *7 (M.D. Pa. Mar. 2, 2022) (finding that an ALJ did not 

adequately articulate why he found an opinion persuasive where he provided only 

one sentence to address both supportability and consistency, did not cite to any 

exhibits, and inaccurately claimed that the source had the benefit of reviewing the 

entire record). 

39 Brownsberger v. Kijakazi, No. 3:20-CV-01426, 2022 U.S. Dist. LEXIS 

8878, 2022 WL 178819, at *7 (M.D. Pa. Jan 18, 2022) (remanding where an ALJ 

did not provide citations to specific evidence in the record, which made impossible 

to review). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 13 of 26
Page 14 of 26

IV. DISCUSSION 

Plaintiff argues that substantial evidence does not support the ALJ’s decision 

because: 

(1) “The ALJ erroneously rejected the opinion of the treating specialist 

which, if properly found persuasive, fairly compels a finding of 

disability” (Doc. 10, p. 5). 

(2) “The ALJ erroneously rejected the opinion of the consultative 

physician which, if properly found persuasive, fairly compels a finding 

of disability” (Id., p. 10). 

(3) “The ALJ erroneously failed to include all of Plaintiff’s credibly 

established limitations in the RFC and hypothetical presented to the 

vocational expert” (Id., p. 14). 

Before turning to the merits of Plaintiff’s arguments, we will summarize the 

ALJ’s findings in his decision. 

A. THE ALJ’S DECISION DENYING PLAINTIFF’S APPLICATION

In his February 14, 2022, decision, the ALJ denied Plaintiff’s application for 

benefits, finding that she was not disabled since November 30, 2018. (Admin. Tr. 

16; Doc. 9-2, p. 17). Plaintiff’s application was evaluated at steps one through five 

of the sequential evaluation process. 

At step one, the ALJ found that Plaintiff did not engage in substantial gainful 

activity since November 30, 2018, her alleged onset date. (Admin. Tr. 17; 9-2, p. 

18). 

At step two, the ALJ found that Plaintiff had the following medically 

determinable severe impairments: cervical and lumbar spondylosis, cervical and 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 14 of 26
Page 15 of 26

lumbar degenerative disc disease, left central disc herniation at L5-S1, depression, 

migraines, and chronic pain syndrome. (Admin. Tr. 17; Doc. 9-2, p. 18). The ALJ 

also found the Plaintiff had the following impairments, which he determined were 

non-severe: acid reflux and stress incontinence. (Admin. Tr. 18; 9-2, p. 19). The 

record further contained assessments of post-traumatic stress disorder and cannabis 

use disorder. (Admin. Tr. 18; Doc. 9-2, p. 19). However, the record contains no 

additional treatment for these conditions. (Admin. Tr. 18; Doc. 9-2, p. 19). In 

accordance with the Appeals Council Remand Order, (Admin. Tr. 130; 9-3, p. 56), 

the ALJ also considered Plaintiff’s obesity, which he determined to be non-severe 

because it did not cause more than a minimal limitation on Plaintiff’s ability to 

perform basic activities. (Admin. Tr. 18; 9-2, p. 19). Further, while the record 

reflected that Plaintiff had a BMI of 30.21 in March 2020, Plaintiff’s counsel 

explained to the ALJ that due to substantial weight loss, Plaintiff may no longer have 

a BMI above 30, and thus would no longer qualify as obese. (Admin. Tr. 72; 9-2, p. 

73). Plaintiff’s medical visits were restricted to telemedicine during the covid 

pandemic, resulting in a lack of updated weight management in her medical records. 

(Admin. Tr. 18; 9-2, p. 19). Accordingly, the ALJ determined that the record 

established “obesity as a non-severe medically determinable impairment at best.” 

(Admin. Tr. 18; 9-2, p. 19). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 15 of 26
Page 16 of 26

At step three, the ALJ found that Plaintiff did not have an impairment or 

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

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 19-20; 

Doc. 9-2, pp. 21-22).

Between steps three and four, the ALJ assessed Plaintiff’s RFC. The ALJ 

found that Plaintiff retained the RFC to engage in sedentary work as defined in 20 

C.F.R. § 416.967(a) with the following additional limitations: 

The claimant can climb ramps and stairs occasionally, never climb 

ladders, ropes, or scaffolds, balance occasionally, and crawl 

occasionally. The claimant can work at unprotected heights frequently, 

move mechanical parts frequently, in humidity and wetness frequently, 

and in extreme cold frequently. The claimant is able to perform simple, 

routine and repetitive tasks but not at a production rate pace (e.g. 

assembly line work). The claimant is able to interact with supervisors 

and coworkers frequently. The claimant is able to tolerate few changes 

in a routine work setting as defined as occasional changes in routine 

work setting. 

(Admin. Tr. 21; Doc. 9-2, p. 22). 

 At step four, the ALJ found that, during the relevant period, Plaintiff could 

not engage in her past relevant work. (Admin. Tr. 25-26; Doc. 9-2, pp. 26-27). 

At step five, the ALJ found that, considering Plaintiff’s age, education and 

work experience, Plaintiff could engage in other work that existed in the national 

economy. (Admin. Tr. 26-27; Doc. 9-2, pp. 27-28). To support his conclusion, the 

ALJ relied on testimony given by a vocational expert during Plaintiff’s 

administrative hearing and cited the following three (3) representative occupations: 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 16 of 26
Page 17 of 26

final assembler, DOT #713-687-018; lens inserter, DOT #713.687-026; and systems 

monitor, DOT #379.367-010. Id. 

B. WHETHER THE ALJ ERRED IN HIS CONSIDERATION OF THE PANDE 

AND SALTZGABER OPINIONS

Plaintiff argues that the ALJ erroneously rejected the opinions of her treating 

specialist and the examining consultative physician, which, if credited, compelled a 

finding of disability because each concluded she was not capable of performing even 

sedentary exertional work. (Doc. 10, pp. 5, 10). In response, the Commissioner 

argues that the ALJ’s determination on the opinions is supported by substantial 

evidence and that Plaintiff is implicitly requesting that this Court reweigh the 

evidence in her favor. (Doc. 14, pp. 11, 14-15). 

After her alleged onset date, Plaintiff presented for a consultative physical 

examination with Dr. Lee Saltzgaber, M.D. in February 2019. (Admin. Tr. 739; Doc. 

9-7, p. 336). Plaintiff complained of “persistent 8/10 stabbing back pain that does 

get to 10/10 on a daily basis” and which gets “worse with bending, standing, sitting, 

and walking. It improves with her use of her TENS unit and laying down.” Id. Dr. 

Saltzgaber noted Plaintiff’s activities of daily living: 

She lives with her mother. She participates in cooking and shopping 

rarely, once a month or couple of times a month, but does not do any 

cleaning, or laundry. There is no need for childcare. She bathes twice a 

week and dresses herself once or twice. She watches TV, listens to 

radio, reads, Facebook, watches movies, and listens to music. 

(Admin. Tr. 740; Doc. 9-7, p. 337). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 17 of 26
Page 18 of 26

 Dr. Saltzgaber further noted that Plaintiff appeared to be in moderate distress 

needing to stand while her history was taken, had a slow, stuttering, and antalgic 

gait, could not perform heel-to-toe walk without difficulty due to imbalance, could 

only perform a half squat due to pain, had a normal stance though leaning to the left, 

did not require assistance getting on or off the exam table, but was unable to rise 

from the chair without difficulty. (Admin. Tr. 741; Doc. 9-7, p. 338). Plaintiff 

appeared to have stable and nontender joints, no trigger points, 5/5 strength in her 

upper and lower extremities except noted in bilateral knee extension and bilateral 

ankle flexion and hand and finger dexterity with 5/5 bilateral grip strength. (Admin. 

Tr. 742; Doc. 9-7, p. 339). 

 Dr. Saltzgaber completed a check-box type questionnaire about Plaintiff’s 

ability to do physical work-related activities. (Admin. Tr. 744; Doc. 9-7, p. 341). In 

that questionnaire, Dr. Saltzgaber was asked to rate Plaintiff’s ability to perform a 

series of activities and tasks and how frequently those tasks could be performed 

based on the following scale: never; occasionally (very little to one-third of the time); 

frequently (one third to two-thirds of the time); and continuously (more than twothirds of the time). Id. Dr. Saltzgaber found that Plaintiff could occasionally lift and 

carry up to ten pounds but never lift more, could occasionally reach, handle, finger, 

feel and pull with both hands and operate foot controls with both feet , could never 

climb stairs, ramps, ladders, or scaffolds, or balance, stoop, kneel, crouch, or crawl, 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 18 of 26
Page 19 of 26

work at unprotected heights, operate a motor vehicle, or tolerate vibrations. (Admin. 

Tr. 744-749; Doc. 9-7, pp. 341-346). He further found that Plaintiff could not walk 

for more than fifteen minutes, stand for more than thirty minutes, or sit for more than 

an hour without interruption, and in an eight-hour workday, could sit for no more 

than a total than three hours and stand or walk for no more than one hour. (Admin. 

Tr. 745; Doc. 9-7, p. 342). As stated by the ALJ’s decision, this examination 

reflected an inability to perform even sedentary exertional work. (Admin. Tr. 24; 

Doc. 9-2, p. 25). 

 On November 15, 2019, Dr. Vinit Pande, M.D., Plaintiff’s treating physician 

since April 2015, completed a Medical Source Statement containing a similar, but 

shorter questionnaire to the one completed by Dr. Saltzgaber. (Admin. Tr. 896-98; 

Doc. 9-7, pp. 493-95). In the questionnaire, Dr. Pande was asked to rate Plaintiff’s 

ability to perform a series of activities and tasks and how frequently those tasks could 

be performed based on the following scale: never; rarely (cumulatively, 1% to 5% 

of an 8-hour working day); occasionally (cumulatively, 6% to 33% of an 8-hour 

working day); and frequently (cumulatively, 34% to 66% of an 8-hour working day). 

Id. 

 Dr. Pande found that Plaintiff could sit for less than two hours a day, stand or 

walk for less than four hours, occasionally lift less than ten pounds, occasionally 

climb stairs with a rail, rarely bend or twist, and never crouch, squat, stoop, or climb 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 19 of 26
Page 20 of 26

ladders. Id. He found that Plaintiff would need a position that required shifting 

position from sitting, standing or walking, that she had significant limitations with 

reaching, handling, or fingering, that Plaintiff impairments were likely to produce 

“bad days,” and that her impairments would likely cause her to be absent from work 

more than three days per month if she was attempting to work full time. Id. 

 The ALJ found both medical opinions unpersuasive because they were 

unsupported by and inconsistent with the objective medical evidence and Plaintiff’s 

activities of daily living.40 (Admin. Tr. 24; Doc. 9-2, p. 25). His supportability and 

consistency analysis stated: 

The undersigned finds these opinions unpersuasive, as they are not 

supported by or consistent with the medical evidence of record and 

activities of daily living previously discussed. Specifically, objective 

medical evidence of full strength, intact sensation, and improvement 

with treatment, along with her ability to walk, go out alone, and grocery 

shop in stores, more fully support her capability of performing 

sedentary exertional work with additional postural and environmental 

limitations. 

Id. 

40 The ALJ found “somewhat persuasive” the medical opinion of the State 

agency medical consultant Dr. Crescenzo Calise, M.D., who in March 2019 found 

that Plaintiff was capable of a reduced range of light exertional work with 

occasional postural maneuvers, but never climbing ladders, ropes, or scaffolds and 

avoidance of concentrated exposure to extreme cold, humidity, and hazards. 

(Admin. Tr. 24; Doc. 9-2, p. 25). Considering Plaintiff’s hearing testimony, 

however, the ALJ accommodated greater exertional limitation than provided by 

limiting Plaintiff to no more than sedentary exertional work. Id. 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 20 of 26
Page 21 of 26

 The previously discussed medical evidence of record referenced by the ALJ 

included records produced by Dr. Pande during Plaintiff’s visits to Northeastern 

Rehabilitation Services between July 2019 and February 2020.41 (Admin. Tr. 24; 

Doc. 9-2, p. 25). While the records indicate that Plaintiff complained of functional 

limitations due to her pain symptomology, the records also indicate that she 

ambulated with a reciprocal/independent gait and experienced “[a]pproximately 

30% relief with current medication,” consistent 5/5 strength in in her upper and 

lower extremities, and intact sensation. (Admin. Tr. 755-764; Doc. 9-7, pp. 351-

361); (Admin. Tr. 899-910; Doc. 9-7, p. 496-507); (Admin. Tr. 911-914; Doc. 9-7, 

pp. 508-511). The ALJ further noted that the records supported continued functional 

and analgesic benefit and limited side effects from her medical regiment. (Admin. 

Tr. 756; Doc. 9-7, p. 353); (Admin. Tr. 901; Doc. 9-7, p. 498); (Admin. Tr. 913; 

Doc. 9-7, p. 510). The ALJ acknowledged that an MRI study indicated only mild 

degenerative disc disease at C6-C7. (Admin. Tr. 903; Doc. 9-7, p. 500). Plaintiff 

further indicated in July 2020 that her medical regimen helps her maintain function. 

(Admin. Tr. 947; Doc. 9-7, p. 544). 

41 The cited records show that Plaintiff visited Northeastern Rehabilitation 

Services nine times during this period. (Admin. Tr. 755-764; Doc. 9-7, pp. 351-

361); (Admin. Tr. 899-910; Doc. 9-7, pp. 496-507); (Admin. Tr. 911-914; Doc. 9-

7, pp. 508-511). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 21 of 26
Page 22 of 26

 Concerning Plaintiff’s activities of daily living, the ALJ discussed both 

Plaintiff’s hearing testimony and the third-party function report submitted by 

Plaintiff’s mother, with whom Plaintiff lives. (Admin. Tr. 22; Doc. 9-2, p. 23); 

(Admin. Tr. 25; Doc. 9-2, p. 26). He noted Plaintiff’s hearing testimony wherein she 

reported that she could prepare her own meals, go out alone, use public 

transportation, shop in stores, count change, watch television and movies, spend time 

with her niece and nephew, play video games, pay attention, follow instructions, get 

along well with authority figures, and handle changes in routine. (Admin. Tr. 23; 

Doc. 9-2, p. 24). Similarly, the ALJ noted that Plaintiff’s mother reported she took 

her medicine without reminders, prepare frozen meals daily, could go out alone, 

shop in stores twice a month, count change, watch television and movies, hang out 

with her niece and nephew, play video games, and go to doctor’s appointments by 

herself. (Admin. Tr. 25; Doc. 9-2, p. 26). 

 Plaintiff makes a number of arguments as to the insufficiency of the ALJ’s 

consistency and supportability analysis. She argues that the ALJ erroneously 

rejected Dr. Pande’s opinion as her treating physician and Dr. Saltzgaber as an 

examining physician because they should be given more weight. (Doc. 10, pp. 5, 

10). She further argues that the ALJ erred in because he omitted from his that Dr. 

Pande and Dr. Saltzgabers’ opinions were consistent with each other, and that both 

were consistent with nonmedical evidence regarding Plaintiff’s limitations. 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 22 of 26
Page 23 of 26

Plaintiff’s arguments, however, ask this Court to re-evaluate the 

persuasiveness of the medical opinions and reweigh the evidence in her favor. This 

we may not do. Our analysis is cabined to whether substantial evidence supports the 

ALJ’s findings.42 Here, the ALJ provided a detailed discussion of Plaintiff’s 

objective medical evidence, the medical opinions, Plaintiff’s hearing testimony, and 

the third-party function report. (Admin. Tr. 15-27; Doc. 9-2, pp. 16-28). The ALJ 

then explained why he did not find Dr. Pande and Dr. Saltzgabers’ opinions 

persuasive, citing to specific parts of the objective medical record in doing so. Id. At 

the ALJ hearing Plaintiff’s counsel asked the VE three hypothetical questions 

derived directly from the limitations suggested by Drs. Khandi and Saltsgaber. The 

VE conceded that there would be no work if those limitations were included. The 

ALJ considered these limitations, but rejected them as inconsistent with the record 

as a whole. Because the ALJ’s decision is supported by “more than a mere scintilla” 

of evidence, we find that the ALJ did not err in his consideration of the medical 

opinion evidence, and his persuasiveness analysis of the medical opinions is 

supported by substantial evidence. 

42 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. § 405(g) by reference); 

Biestek v. Berryhill, 587 U.S. 97, 102-03, 139 S. Ct. 1148, 203 L. Ed. 2d 504 

(2019). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 23 of 26
Page 24 of 26

C. WHETHER THE ALJ ERRED IN PRESENTING HIS HYPOTHETICAL 

QUESTION TO THE VOCATIONAL EXPERT

 Here, the ALJ supported his determination at step five by relying on the VE’s 

response to a hypothetical question regarding the ability to perform work despite the 

presence of certain limitations. Plaintiff argues that substantial evidence does not 

support the ALJ’s determination because that hypothetical question did not include 

all of Plaintiff’s credibly established limitations. He alleges that the omitted 

limitations were the ones assessed by Dr. Pande and Dr. Saltzgaber. 

In decisions where an ALJ relies on a VE to support his step five 

determination, substantial evidence does not support his conclusion where the VE’s 

testimony was elicited using an incomplete or inaccurate hypothetical question.43 A 

hypothetical question is inaccurate where it does not account for all a claimant’s 

credibly established limitations. Not every limitation alleged, however, will be 

credibly established. The Third Circuit articulated the following framework to 

determine whether a limitation is credibly established: 

First, limitations that are supported by medical evidence and are 

“otherwise uncontroverted in the record” must be included in the ALJ’s 

hypothetical for us to rely on the VE’s response to that hypothetical. 

[Rutherford, 399 F.3d at 554] However, where a limitation is supported 

by medical evidence, but is opposed by other evidence in the record, 

43 Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (“the ALJ must 

accurately convey to the vocational expert all of a claimant's credibly established 

limitations.”). 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 24 of 26
Page 25 of 26

the ALJ has discretion to choose whether to include that limitation in 

the hypothetical. Id. This discretion is not unfettered—the ALJ cannot 

reject evidence of a limitation for an unsupported reason. Id. Finally, 

the ALJ also has the discretion to include a limitation that is not 

supported by any medical evidence if the ALJ finds the impairment 

otherwise credible. Id.44

Here, Plaintiff implies that the ALJ improperly omitted, without specifically 

stating any, “the limitations assessed by those physicians” opinions. The only basis 

offered by Plaintiff to support his argument that these limitations were credibly 

established is their presence in the opinions. As discussed in the preceding section 

of this Memorandum, substantial evidence supports the ALJ’s persuasiveness 

findings. Thus, they are effectively limitations not supported by credible medical 

evidence. Applying the correct framework, it is within the ALJ’s discretion to 

exclude or include these limitations, and Plaintiff offers no basis to disturb that 

conclusion. 

Accordingly, we find that ALJ’s hypothetical question did not improperly 

omit these limitations, and therefore substantial evidence supports the ALJ's 

conclusion at step five. 

[The next page contains the Conclusion] 

44 Zirnsak, 777 F.3d at 614-15. 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 25 of 26
Page 26 of 26

V. CONCLUSION 

Accordingly, for the foregoing reasons, the final decision of the 

Commissioner will be AFFIRMED. An appropriate order will be issued. 

Date: January 21, 2025 BY THE COURT 

 s/William I. Arbuckle 

 William I. Arbuckle 

 U.S. Magistrate Judge 

Case 4:23-cv-00685-WIA Document 16 Filed 01/21/25 Page 26 of 26