Pennsylvania Cases November 29, 2023: Musser v. Kijakazi

Case Description

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(BLOOM, MAGISTRATE JUDGE)

REPORT AND RECOMMENDATION

(BRANN, CHIEF JUDGE)

I. Introduction

Dale Musser filed an application for disability and disability insurance benefits on February 3, 2020. A hearing was held before an Administrative Law Judge (“ALJ”), and the ALJ found that Musser was not disabled from his alleged onset date of May 8, 2019, through the date of the ALJ's decision, June 17, 2021.

Musser now appeals this decision, arguing that the ALJ's decision is not supported by substantial evidence. After reviewing the record, and mindful of the fact that substantial evidence “means only- ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,'” Biestek v Berryhill, 139 S.Ct. 1148, 1154 (2019),

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we conclude that substantial evidence supported the ALJ's findings in this case. Therefore, we recommend that the district court affirm the decision of the Commissioner denying Musser's claim.

II. Statement of Facts and of the Case

Dale Musser filed for disability and disability insurance benefits, alleging disability due to a bulging disc in his lower back, cornea disease, sleep apnea, anxiety, depression, high blood pressure, high cholesterol, and acid reflux. (Tr. 56-57). He alleged an onset date of disability of May 8, 2019. ( Id. ). Musser was 36 years old at his alleged onset date, qualifying him as a “younger individual,” had at least a high school education, and had past relevant work as a tree trimmer, forklift operator, and construction worker. (Tr. 28-29).

The record indicates that prior to his alleged onset date, Musser suffered a lower back injury at work in October of 2018, while he was trimming a tree from a bucket truck. (Tr. 369). On November 12, 2018, it was noted that he was improving five weeks post-injury (Tr. 319), and an amended note on that date indicated that Musser was discharged from physical therapy and was “[w]orking regular duty and using Ibuprofen

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BID. Pain is minimal-low back.” (Tr. 320). On examination, Musser had full range of motion, normal motor strength and tone, a negative straight leg raise test, and no bilateral muscle spasms. (Tr. 321).

In April of 2019, Musser was treated by Dr. Robert Ettlinger, M.D., for his back pain. (Tr. 565-66). It was noted that Musser was working with Concentra for pain management and on examination, Musser exhibited no joint abnormalities and good mobility of all extremities. (Tr. 565-566). At a visit with UPMC around this time, Musser reported some improvement of his sleep apnea symptoms, which was diagnosed in 2017 (Tr. 546), but that he had trouble with his BiPAP machine at night. (Tr. 557). He further reported that Ambien was not helping his sleep, and he fell asleep at work and almost fell into a woodchipper. ( Id. ). It was recommended that he not drive or operate heavy machinery at that time. (Tr. 558).

Musser began physical therapy in May of 2019 to improve his decreased lumbar strength and range of motion, as well as his functional

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limitations in bending, reaching, sitting, standing, and working. (Tr. 497). Around this time, an MRI of Musser's lumbar spine showed nerve impingement associated with degenerative disc disease at ¶ 5-S1, small central disc protrusion with no spinal canal or foraminal stenosis at ¶ 4-5, and a broad-based right paracentral disc spur complex at ¶ 11-12. (Tr. 485-86). Therapy notes from June indicate that Musser continued to report high pain levels and difficulty with his daily living activities. (Tr. 507). At an orthopedic follow-up in June, Musser reported that he stopped working because his work was pushing him past his physical limitations. (Tr. 459). A musculoskeletal examination revealed that Musser ambulated independently, had intact sensation in his lower extremities, pain with a straight leg raise, and some pain with range of motion. (Tr. 460). Dr. Rutter continued him on the same work restrictions and recommended that Musser try to go to work with the limited restrictions. (Tr. 461).

Dr. Rutter noted that Musser had received injections in his back and in July of 2019, reported a five percent improvement in his symptoms. (Tr. 462). At this visit, Musser reported that therapy had not

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been beneficial. ( Id. ). Musser's July physical examination was largely the same as his examination in June. (Tr. 460, 463). Musser was discharged from physical therapy in August. (Tr. 515-18).

In September of 2019, at a follow-up appointment with Musser, Dr. Rutter noted that Musser had undergone a transforaminal injection that provided no relief. (Tr. 465). On examination, Musser was able to ambulate and move from a seated to standing position without difficulty, he had a negative straight leg raise test, and his lower extremities were neurovascularly intact. (Tr. 466). Dr. Rutter recommended that Musser see an outside physician regarding facet joint injections. ( Id. ).

At an October 2019 appointment with an outside physician, Dr. Wahlberg, Musser reported that he did not experience much pain while sitting but standing caused significant pain and that overall, he felt an improvement since its onset. (Tr. 468, 470). Dr. Wahlberg noted that Musser was able to ambulate and perform activities of daily living without assistive devices, and that Musser believed he could lift up to 50 pounds at that time. (Tr. 469-70). Dr. Wahlberg recommended conservative management. (Tr. 470).

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Musser was also treated by Dr. Ettlinger in October, who encouraged Musser to walk more regularly. (Tr. 571). On examination, Musser had no joint abnormalities and good mobility of all extremities. ( Id. ). In November, Musser reported lower back pain and paralysis, but again had good mobility of his extremities and no joint abnormalities. (Tr. 578-79). At a visit with pain management around this time, Musser reported that he was in constant pain and had periods of exacerbation during which he rated the pain 8-10/10. (Tr. 612). On physical examination, Musser had 5/5 motor strength in his bilateral upper and lower extremities; his sensation was grossly intact; his straight leg raise test was negative; his gait was somewhat antalgic; and he had decreased range of motion and pain with flexion and extension. (Tr. 616-17). He was scheduled for lumbar facet steroid injections and prescribed a low dose of Percocet. (Tr. 617-18).

Musser was treated by Dr. Ettlinger in January of 2020, at which time Dr. Ettlinger noted that Musser was taking narcotic pain medications twice per week “before or during heavy activity.” (Tr. 581). In March, Dr. Ettlinger noted that Musser had only a rare need for his

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narcotic pain medications, and a musculoskeletal examination was largely normal, noting no joint abnormalities and good mobility of his extremities. (Tr. 590-91). At a follow-up in May, Dr. Ettlinger noted that Musser was “able to do limited work with lumber” but could not fully work due to his back pain. (Tr. 593). Musser reported to Dr. Ettlinger that he completed his exercises most days which helped his pain. ( Id. ). Dr. Ettlinger opined that Musser's back pain still limited him but was “in better control than last time.” (Tr. 594). Treatment notes from August indicate that Musser was a candidate for medical marijuana but did not want to try it. (Tr. 1008). On examination, he had good mobility and normal neurovascular functions, including straight leg raise tests. (Tr. 1009).

Musser resumed physical therapy in September of 2020. (Tr. 670). He complained of continued difficulty with prolonged sitting and standing. (Tr. 673). In October, he reported feeling like he had more motion with reduced pain. (Tr. 682). Musser continued therapy and in November, he reported difficulty with his activities of daily living. (Tr.

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712). A few weeks later, Musser reported a flare up of his back pain after doing light yardwork over the weekend. (Tr. 730).

Regarding these physical impairments, Musser's physician, Dr. Ettlinger, submitted a physical residual functional capacity questionnaire in April of 2021. (Tr. 1082-86). Dr. Ettlinger opined that Musser could sit, stand, and walk for less than 2 hours in an 8-hour workday; that he needed to shift positions at will; that he could lift and carry up to 20 pounds occasionally and 50 pounds rarely; and that he could rarely twist, stoop, crouch, or climb ladders or stairs. ( Id. ).

The record also indicates that Musser was obese during the relevant period. Indeed, many of the treatment notes indicate that Musser suffered from obesity, having a body mass index of just under or over 40 during this time. ( See e.g. , Tr. 591, 594, 671, 874, 876, 878, 973, 975, 1008, 1011, 1015, 1018, 1020-21, 1024).

With respect to Musser's mental impairments, the record indicates that Musser was treated for anxiety and depression during the relevant time. Musser completed an intake form in May of 2019 seeking treatment for these impairments. (Tr. 832-50). Treatment notes from December of

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2019 indicate that Musser's primary care physician had prescribed him Paxil, and that he reported experiencing panic attacks daily. (Tr. 775). A mental status examination revealed that he was “miserable” and had anticipatory anxiety, and his insight and judgment were fair. ( Id. ). In January and February of 2020, Musser presented with an anxious mood, intact memory, and fair attention and concentration. (Tr. 745, 754).

In April, however, Musser reported his mood had been good and his anxiety was under control. (Tr. 759). On examination, he had a happy mood, intact thought processes, and good attention and concentration. (Tr. 760). Treatment notes from July again reported good attention and concentration but indicated that he had been experiencing increased anxiety. (Tr. 764-65).

Musser underwent a mental status evaluation with Dr. Kathleen Ledermann, Psy.D., in August of 2020. (Tr. 654-61). Dr. Ledermann noted that Musser had never been hospitalized but had been treated by a therapist and a psychiatrist. (Tr. 654-55). During the examination, Dr. Ledermann observed Musser shifting in his chair due to pain. (Tr. 656). Musser's attention, concentration, and memory were mildly impaired,

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and his insight and judgment were good. (Tr. 656-57). He reported an ability to perform self-care with some difficulty, and an inability to clean, do laundry, shop, and manage money. (Tr. 657). Dr. Ledermann opined that Musser was mildly impaired in his ability to understand, remember, and carry out complex instruction due to his memory and concentration difficulties and moderately limited in his ability to interact appropriately with others. (Tr. 659-60).

At a visit in October, Musser reported some anxiety, but it was noted that his mood disorder and anxiety were okay on his medications. (Tr. 770-71). Musser reported later that month that he was feeling okay and was doing more around the house and exercising. (Tr. 929). Treatment notes indicate that Musser was pleasant and reported that getting things done was improving his mood. ( Id. ). The notes further indicate that Musser was trying to wear his CPAP more often so that he could eventually get his license back. ( Id. ). Musser reported similar feelings in November and stated that he had “been thinking and realizing that he is holding himself back by not listening or complying with the doctors.” (Tr. 939). In December, he reported doing more around the

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house and a desire to get his license back so he could find employment. (Tr. 944).

In April of 2021, Shannon Miller, the plaintiff's mental health provider, filled out a mental impairment questionnaire in which she opined that Musser experienced marked limitations in almost every functional area and ability to perform even limited work activities. (Tr. 1078-79).

Thus, it was against the backdrop of this record that an ALJ held a hearing on Musser's disability application on May 19, 2021. (Tr. 36-55). Musser and a Vocational Expert both appeared and testified at the hearing. ( Id. ). On June 17, 2021, the ALJ issued a decision denying Musser's application for disability benefits. (Tr. 16-30). In this decision, the ALJ first concluded that Musser had not engaged in substantial gainful activity since May 8, 2019, his alleged onset of disability. (Tr. 18). At Step 2 of the sequential analysis that governs disability claims, the ALJ found that Musser suffered from the following severe impairments: degenerative disc disease, diabetes, obstructive sleep apnea, vision loss, obesity, mood disorder, anxiety, and alcohol use disorder. ( Id. ). At Step 3, 11

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the ALJ concluded that none of these impairments met or equaled the severity of a listed impairment under the Commissioner's regulations. (Tr. 19-21).

Between Steps 3 and 4, the ALJ then concluded that Musser:

[H]a[d] the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he can occasionally climb ramps/stairs; occasionally balance and stoop; never climb ladders, ropes, and scaffolds. He can have occasional left eye acuity/depth perception. He must avoid concentrated exposure to noise/vibration. He must avoid all exposure to dangerous machinery and unprotected heights. He can have only occasional interaction with supervisors, coworkers, and the public.

(Tr. 21-22).

In reaching this RFC determination, the ALJ considered the objective medical record detailed above, the medical opinion evidence, and Musser's reported symptoms. With respect to Musser's physical impairments, the ALJ considered the opinions of the state agency consultants and found these opinions persuasive. (Tr. 26). These opinions found that Musser could perform a range of light work, and the ALJ reasoned that these opinions were consistent with normal physical examination findings in the record and accounted for the Musser's

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limitations due to his back pain. ( Id. ). With respect to Dr. Ettlinger's opinions, the ALJ found that these opinions were not persuasive because they were overly restrictive, not supported by Dr. Ettlinger's own findings, and one of these opinions was merely a check box form with no explanations for the extreme limitations provided. (Tr. 26-27).

With respect to Musser's mental limitations, the ALJ considered the August 2020 opinion of Dr. Ledermann, the examining consultant who opined that Musser had mostly mild limitations and found this opinion mostly persuasive. (Tr. 27). The ALJ also found persuasive the opinions of the state agency consultants who opined that Musser was able to meet the mental demands of simple routine work. ( Id. ). The ALJ further considered the extremely restrictive opinion of Shannon Miller, LPC, and found this opinion not persuasive because it was not supported by the objective medical evidence, including normal mental status examinations during the relevant period. ( Id. ).

With respect to Musser's symptoms, the ALJ found that Musser's statements concerning the intensity, persistence, and limiting effects of his impairments were not entirely consistent with the medical evidence.

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(Tr. 17-18). Musser testified that he injured his lower back at work in 2018. (Tr. 39). He also suffered from sleep apnea, anxiety, and depression. ( Id. ). He stated that it was difficult for him to shower and dress, and that sitting for long periods of time hurt his back. (Tr. 40). He reported an ability to use stairs, but that it was painful, and that it hurt to bend, reach, and twist. (Tr. 40-41). He had tried physical therapy, injections and medication for his pain. (Tr. 40). Regarding his physical capabilities, Musser stated that he could only stand, sit, and walk for 15 to 30 minutes. (Tr. 48). He further testified that he had a CPAP machine for his sleep apnea but did not always use it. (Tr. 43). He reported that his driver's license was taken away because he fell asleep at work and crashed a truck. (Tr. 44). He further testified to experiencing anxiety, depression, and panic attacks. ( Id. ).

The ALJ found Musser's testimony to be inconsistent with the objective clinical findings and the conservative nature of his treatment. (Tr. 22-24). While the ALJ recognized Musser's alleged limitations due to his back pain, the ALJ pointed to objective findings of a normal gait, intact sensation, good mobility in his extremities, negative straight leg

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raise tests, and his ability to ambulate independently. (Tr. 22-23). The ALJ further noted the records indicating that Musser was obese but pointed to the objective findings noted above to find that Musser was not as limited as he alleged. (Tr. 24). With respect to his mental health, Musser reported an inability to be around others, as well as impaired concentration, attention, and memory. (Tr. 24). However, the ALJ pointed to normal mental status examinations showing good attention and concentration, as well as the findings of the state agency consultants that showed only mild limitations in attention and concentration (Tr. 2425). The ALJ also noted that this is consistent with the limitation for only occasional interaction with supervisors, coworkers and the public. (Tr. 24). Ultimately, the ALJ reasoned that the objective evidence in the record did not support the severity of Musser's alleged symptoms.

Having made these findings, the ALJ found at Step 4 that Musser was unable to perform his past relevant work but found at Step 5 that Musser could perform work in the national economy, such as a marker, a cleaner in housekeeping and an assembler in electrical accessories I. (Tr.

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28-29). Accordingly, the ALJ found that Musser had not met the stringent standard prescribed for disability benefits and denied his claim. (Tr. 30).

This appeal followed. On appeal, Musser presented three issues. He argued that the ALJ erred in considering his obesity, erred in his consideration of Dr. Ettlinger's opinion and improperly discounted his subjective symptoms. This case is fully briefed and is therefore ripe for resolution. For the reasons set forth below, we recommend that the court affirm the decision of the Commissioner.

III. Discussion

A. Substantial Evidence Review - the Role of this Court

This Court's review of the Commissioner's decision to deny benefits is limited to the question of whether the findings of the final decisionmaker are supported by substantial evidence in the record. See 42 U.S.C. §405(g); Johnson v. Comm'r of Soc. Sec. , 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue , 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood , 487 U.S. 552, 565

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(1988). Substantial evidence means less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales , 402 U.S. 389, 401 (1971).

A single piece of evidence is not substantial evidence if the ALJ “ignores, or fails to resolve, a conflict created by countervailing evidence.” Mason v. Shalala , 994 F.2d 1058, 1064 (3d Cir. 1993) (quoting Kent v. Schweiker , 710 F.2d 110, 114 (3d Cir. 1983)) (internal quotations omitted). However, where there has been an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n , 383 U.S. 607, 620 (1966). The court must “scrutinize the record as a whole” to determine if the decision is supported by substantial evidence. Leslie v. Barnhart , 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).

The Supreme Court has explained the limited scope of our review, noting that “[substantial evidence] means-and means only- ‘such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.'” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Under this standard, we must look to the existing administrative record to determine if there is “‘sufficient evidence' to support the agency's factual determinations.” Id. Thus, the question before us is not whether the claimant is disabled, but rather whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was based upon a correct application of the law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary's determination as to the status of a claim requires the correct application of the law to the facts”); see also Wright v. Sullivan , 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).

When conducting this review, we must remain mindful that “we must not substitute our own judgment for that of the fact finder.”

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Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). Thus, we cannot re-weigh the evidence. Instead, we must determine whether there is substantial evidence to support the ALJ's findings. In doing so, we must also determine whether the ALJ's decision meets the burden of articulation necessary to enable judicial review; that is, the ALJ must articulate the reasons for his decision. Burnett v. Commr of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). This does not require the ALJ to use “magic” words, but rather the ALJ must discuss the evidence and explain the reasoning behind his or her decision with more than just conclusory statements. See Diaz v. Commr of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009) (citations omitted). Ultimately, 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).

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

To receive disability benefits under the Social Security Act, a claimant must show that he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or

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mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(a). This requires a claimant to show a severe physical or mental impairment that precludes [him/her] from engaging in previous work or “any other substantial gainful work which exists in the national economy.” 42 U.S.C. §423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she is under retirement age, 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).

In making this determination, the ALJ follows a five-step evaluation. 20 C.F.R. §§404.1520(a), 416.920(a). The ALJ must sequentially determine whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has a severe impairment that meets or equals a listed impairment; (4) is able to do his or her past relevant work; and (5) is able to do any other work,

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considering his or her age, education, work experience and residual functional capacity (“RFC”). 20 C.F.R. §§404.1520(a)(4), 416.920(a)(4).

Between Steps 3 and 4, the ALJ must also determine the claimant's residual functional capacity (RFC). RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett , 220 F.3d at 121 (citations omitted); see also 20 C.F.R. § 404.1545(a)(1). In making this assessment, the ALJ must consider 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 C.F.R. §§404.1545(a)(2), 416.945(a)(2). Our review of the ALJ's determination of the plaintiff's RFC is deferential, and that determination will not be set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002).

The claimant bears the burden at Steps 1 through 4 to show a medically determinable impairment that prevents him or her from engaging in any past relevant work. Mason , 994 F.2d at 1064. If met, the burden then shifts to the Commissioner to show at Step 5 that there are

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jobs in significant numbers in the national economy that the claimant can perform consistent with the claimant's RFC, age, education, and work experience. 20 C.F.R. §§404.1512(f), 416.912(f); Mason , 994 F.2d at 1064.

With respect to the RFC determination, courts have followed different paths when considering the impact of medical opinion evidence on this determination. While some courts emphasize the necessity of medical opinion evidence to craft a claimant's RFC, see Biller v. Acting Commr of Soc. Sec., 962 F.Supp.2d 761, 778-79 (W.D. Pa. 2013), other courts have taken the approach that “[t]here is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC.” Titterington v. Barnhart , 174 Fed.Appx. 6, 11 (3d Cir. 2006). Additionally, in cases that involve no credible medical opinion evidence, courts have held that “the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided.” Cummings v. Colvin , 129 F.Supp.3d 209, 214-15 (W.D. Pa. 2015).

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Given these differing approaches, we must evaluate the factual context underlying an ALJ's decision. Cases that emphasize the importance of medical opinion support for an RFC assessment typically arise in the factual setting where well-supported medical sources have found limitations to support a disability claim, but an ALJ has rejected the medical opinion based upon an assessment of other evidence. Biller , 962 F.Supp.2d at 778-79. These cases simply restate the notion that medical opinions are entitled to careful consideration when making a disability determination. On the other hand, when no medical opinion supports a disability finding or when an ALJ relies upon other evidence to fashion an RFC, courts have routinely sustained the ALJ's exercise of independent judgment based upon all the facts and evidence. See Titterington, 174 Fed.Appx. 6; Cummings, 129 F.Supp.3d at 214-15. Ultimately, it is our task to determine, considering the entire record, whether the RFC determination is supported by substantial evidence. Burns, 312 F.3d 113.

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C. Legal Benchmarks for Assessing a Claimant's Obesity

Musser challenges the ALJ's assessment of, or lack thereof, his obesity. Under the agency's regulations, the ALJ must analyze the effects of a claimant's obesity on his or her ability to function. See SSR 02-01p, SSR 00-3p. This is particularly so when the ALJ identifies the claimant's obesity as a severe impairment at Step 2. Diaz v. Comm 'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009). The Third Circuit has explained that the ALJ need not “use particular language or adhere to a particular format in conducting his analysis” of a claimant's obesity. Diaz, 577 F.3d at 504 (citations omitted). Rather, so long as the ALJ “meaningfully consider[s] the effect of a claimant's obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step[,]” id. at 504, a remand is not required. See Woodson v. Comm'rSoc. Sec., 661 Fed.Appx. 762, 765 (3d Cir. 2016); Cooper v. Comm'r of Soc. Sec., 563 Fed.Appx. 904, 911 (3d Cir. 2014).

D. Legal Benchmarks for the ALJ's Assessment of Medical Opinions

The plaintiff filed this disability application in February of 2020 after Social Security Regulations regarding the consideration of medical

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opinion evidence were amended. Prior to March of 2017, the regulations established a hierarchy of medical opinions, deeming treating sources to be the gold standard. However, in March of 2017, the regulations governing the treatment of medical opinions were amended. Under the amended regulations, ALJs are to consider several factors to determine the persuasiveness of a medical opinion: supportability, consistency, relationship with the claimant, specialization, and other factors tending to support or contradict a medical opinion. 20 C.F.R. § 404.1520c(c).

Supportability and consistency are the two most important factors, and an ALJ must explain how these factors were considered in his or her written decision. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2); Blackman v. Kijakazi , 615 F.Supp.3d 308, 316 (E.D. Pa. 2022). Supportability means “[t]he more relevant the objective medical evidence and supporting explanations . . . are to support his or her medical opinion(s) ....the more persuasive the medical opinions . . . will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). The consistency factor focuses on how consistent the opinion is “with the evidence from other medical sources and nonmedical sources.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).

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While there is an undeniable medical aspect to the evaluation of medical opinions, it is well settled that “[t]he ALJ - not treating or examining physicians or State agency consultants - must make the ultimate disability and RFC determinations.” Chandler v. Comm'r of Soc. Sec. , 667 F.3d 356, 361 (3d Cir. 2011). When confronted with several medical opinions, the ALJ can choose to credit certain opinions over others but “cannot reject evidence for no reason or for the wrong reason.” Mason , 994 F.2d at 1066. Further, the ALJ can credit parts of an opinion without giving credit to the whole opinion and may formulate a claimant's RFC based on different parts of different medical opinions, so long as the rationale behind the decision is adequately articulated. See Durden v. Colvin , 191 F.Supp.3d 429, 455 (M.D. Pa. 2016). On the other hand, in cases where no medical opinion credibly supports the claimant's allegations, “the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided.” Cummings , 129 F.Supp.3d at 214-15.

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E. Legal Benchmarks for the ALJ's Assessment of a Claimant's Alleged Symptoms

When evaluating lay testimony regarding a claimant's reported degree of pain and disability, the ALJ must make credibility determinations. See Diaz v. Comm'r 577 F.3d 500, 506 (3d Cir. 2009). Our review of those determinations is deferential. Id. However, it is incumbent upon the ALJ to “specifically identify and explain what evidence he found not credible and why he found it not credible.” Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014) (citations omitted). An ALJ should give great weight to a claimant's testimony “only when it is supported by competent medical evidence.” McKean v. Colvin, 150 F.Supp.3d 406, 415-16 (M.D. Pa. 2015) (citations omitted). As the Third Circuit has noted, “statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d. Cir. 2011) (referencing 20 C.F.R. §404.1529(a) (“statements about your pain or other symptoms will not alone establish that you are disabled”).

The Social Security Rulings and Regulations provide a framework for evaluating the severity of a claimant's reported symptoms. 20 C.F.R.

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§§ 404.1529, 416.929; SSR 16-3p. Thus, the ALJ must follow a two-step process. First, the ALJ must determine whether a medically determinable impairment could cause the symptoms alleged. Second, the ALJ must evaluate the alleged symptoms considering the entire administrative record. SSR 16-3p.

Symptoms such as pain or fatigue will be considered to affect a claimant's ability to perform work activities only if medical signs or laboratory findings establish the presence of a medically determinable impairment that could reasonably be expected to produce the alleged symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 16-3p. During the second step of this assessment, the ALJ must determine whether the claimant's statements regarding the intensity, persistence, or limiting effects of his or her symptoms are substantiated when considering the entire case record. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 16-3p. This includes, but is not limited to, medical signs and laboratory findings; diagnoses; medical opinions provided by treating or examining sources and other medical sources; and information regarding the claimant's

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symptoms and how they affect his or her ability to work. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 16-3p.

The Social Security Administration recognizes that individuals may be limited by their symptoms to a greater or lesser extent than other individuals with the same medical impairments, signs, and laboratory findings. SSR 16-3p. Thus, to assist in the evaluation of a claimant's subjective symptoms, the Social Security Regulations set forth seven factors that may be relevant to the assessment of the claimant's alleged symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). These factors include: the claimant's daily activities; the “location, duration, frequency, and intensity” of the claimant's pain or symptoms; the type, dosage, and effectiveness of medications; treatment other than medications; and other factors regarding the claimant's functional limitations. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

F. The ALJ's Decision is Supported by Substantial Evidence.

Our review of the ALJ's decision denying an application for benefits is significantly deferential. Our task is simply to determine whether the ALJ's decision is supported by substantial evidence in the record; that is

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“only- ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek, 139 S.Ct. at 1154. Judged against this deferential standard of review, we conclude that substantial evidence supported the ALJ's decision in this case.

Musser first challenges the ALJ's analysis of his obesity, arguing that the ALJ did not properly consider his obesity in light of his other physical impairments. However, we conclude that the ALJ's consideration of Musser's obesity is supported by substantial evidence. The ALJ noted the findings of obesity during the relevant time. (Tr. 24). However, the ALJ further pointed to objective evidence showing that Musser was able to ambulate independently, and there were normal physical findings over the relevant period such as a normal gait, good mobility of his extremities, and normal neurovascular examinations. (Tr. 23-24). Given this objective evidence, the ALJ ultimately found that Musser's obesity did not require greater limitations than set forth in the residual functional capacity. (Tr. 24). We find no error in the ALJ's analysis here.

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Musser also objects to the ALJ's treatment of Dr. Ettlinger's opinion. As we have noted, this disability application was filed after amendments to the regulations changed the way opinion evidence was considered. Accordingly, the ALJ is required to explain how persuasive he or she found an opinion to be, considering the supportability and consistency of that opinion with the objective medical evidence. Here, the ALJ considered Dr. Ettlinger's extremely restrictive opinion, which opined that Musser could only sit, stand, or walk for less than 2 hours; required a sit/stand option and unscheduled breaks, and could only work 6 hours per day. (Tr. 26-27). Ultimately, the ALJ found that this opinion was not consistent with Dr. Ettlinger's own treatment notes, which showed good mobility of Musser's extremities, normal neurovascular examinations and sensory functions, negative straight leg raise tests, and a normal gait and station. (Id. ). The ALJ further reasoned that Dr. Ettlinger's opinion was not persuasive because it was merely a check box form that did not contain any explanations for the extreme limitations set forth by Dr. Ettlinger. (Id. ).

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We find no error in the ALJ's assessment of Dr. Ettlinger's opinion. The ALJ pointed to the objective evidence in the record, including Dr. Ettlinger's own treatment notes, that were inconsistent with Dr. Ettlinger's extreme limitations. Further, while the plaintiff argues that the ALJ should not have given much consideration to the fact that the opinion was in a check box form, the Third Circuit has suggested that “[f]orm reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best.” Mason, 994 F.2d at 1065; see also Zonak v Comm'r of Soc. Sec., 290 Fed.Appx. 493, 497 (3d Cir. 2008). We find this to be particularly the case here, where the limitations set forth in the form are contradicted by the physician's own treatment notes. Further, while Musser contends that the ALJ should not have discounted this opinion because it relied on his subjective complaints, as we will discuss below, the ALJ properly discounted Musser's subjective complaints because they were not supported by the objective evidence. Accordingly, the ALJ was entitled to discount those parts of Dr. Ettlinger's opinion that relied on Musser's subjective complaints. See e.g., Morris v. Barnhart, 78 Fed.Appx. 820, 824-25 (3d Cir. 2003).

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Finally, we conclude that the ALJ adequately explained his reasoning for finding that Musser was not as limited as he alleged. The plaintiff contends that the ALJ failed to point to objective evidence of his activities that contradicted his subjective complaints, and improperly relied on his noncompliance with treatment. However, the ALJ cited to the objective evidence in the record that he found was inconsistent with Musser's allegations, such as normal physical examinations, the ability to ambulate independently, and notably, the fact that Musser performed some work activity after the alleged onset date. (Tr. 25). The ALJ also cited to records indicating that Musser was noncompliant with his treatment at times, including his physical therapy and home exercise programs, as well as his noncompliance with wearing his CPAP machine. (Id. ). In fact, the ALJ pointed to records that indicate Musser was discharged from physical therapy due to noncompliance. (See Tr. 25, 377). Additionally, treatment notes reflect that Musser recognized his noncompliance when he stated that he had “been thinking and realizing that he is holding himself back by not listening or complying with the doctors.” (Tr. 939).

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Given the objective evidence in the record undermining the plaintiff's allegations regarding the severity of his impairments, the ALJ properly considered Musser's symptoms but ultimately found that he was not as limited as he alleged. Thus, there is no basis for a remand on these grounds. Accordingly, under the deferential standard of review that applies to appeals of Social Security disability determinations, we conclude that substantial evidence supported the ALJ's evaluation of this case and recommend that this decision be affirmed.

IV. Recommendation

For the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner in this case should be affirmed, and the plaintiff's appeal denied.

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

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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.