IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JENNIFER MARIE TOY, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-1653-LPS-SRF ) KILOLO KIJAKAZI,! ) Commissioner of Social Security, ) ) Defendant. . ) ) REPORT AND RECOMMENDATION I. INTRODUCTION Plaintiff Jennifer Marie Toy (‘Plaintiff’) filed this action pursuant to 42 U.S.C. § 405(g) on December 4, 2020 against the defendant Kilolo Kijakazi, the Acting Commissioner of the Social Security Administration (the “Commissioner”). (D.I. ^[2]) Plaintiff seeks judicial review of the Commissioner’s December 16, 2019 final decision, denying Plaintiffs claim for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (the “Act’”), 42 U.S.C. §§ 401-434 and §§ 1381-1383f. Currently before the court are cross-motions for summary judgment filed by Plaintiff and the Commissioner.” (D.I. 14; D.I. 16) Plaintiff asks the court to reverse the Commissioner’s decision and remand for further administrative proceedings. (D.I. 15 at 17) The Commissioner requests that the court affirm the ALJ’s decision. (D.I. 17 at 15) For the

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Therefore, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Ms. Kijakazi is substituted as Defendant in place of Andrew Saul. ^[2] The briefing associated with the pending motions is found at D.I. 15 and D.I. 17. On August 27, 2021, Plaintiff filed a notice indicating her intention to rest on her opening brief. (D.I. 18)

reasons set forth below, I recommend that the court DENY Plaintiffs motion for summary judgment (D.I. 14), and GRANT the Commissioner’s cross-motion for summary judgment (D.I. 16). Il. BACKGROUND A. Procedural History Plaintiff protectively filed applications for DIB and SSI on August 7, 2017 and September 14, 2017, respectively, alleging a disability onset date of April 20,2017 due to bipolar disorder, depression, and anxiety. (D.I. 11 at 15, 255-66, 283) Plaintiff's clayms were denied initially and again on reconsideration. (/d. at 114-77) At Plaintiffs request, an administrative law judge (“ALJ”) held a hearing on October 29, 2019. (/d. at 66-113) The ALJ issued an unfavorable decision on December 16, 2019, finding that Plaintiff was not disabled under the Act. (/d. at 15-28) The Appeals Council subsequently denied Plaintiffs request for review of the ALJ’s decision, making the ALJ’s decision the final decision of the Commissioner. (/d. at 6- 8) Plaintiff brought this civil action challenging the ALJ’s decision on December 4, 2020. (D.I. ^[2]) Plaintiff filed a motion for summary judgment on July 19, 2021 (D.I. 14), and the Commissioner cross-moved for summary judgment on August 18, 2021 (D.I. 16). Briefing is now complete on the pending motions. B. Medical History the Commissioner to determine whether the claimant is suffering from a severe impairment or a severe combination of impairments. See id. at §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant’s impairments are severe, at step three, the Commissioner compares the claimant’s impairments to a list of impairments that are presumed severe enough to preclude any gainful work. See id. at §§ 404.1520(a)(4)(ii1), 416.920(a)(4)(iii); Plummer, 186 F.3d at 428. . When a claimant’s impairment or its equivalent matches a listed impairment, the claimant is presumed disabled. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant’s impairment, either singly or in combination, fails to meet or medically equal any listing, the analysis continues to steps four and five. See id. at §§ 404.1520(e), 416.920(e). At step four, the ALJ considers whether the claimant retains the residual functional capacity (“RFC”) to perform past relevant work. See id. at §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv); Plummer, 186 F.3d at 428. A claimant’s RFC “measures the most she can do despite her limitations.” Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (quoting 20 C.F.R. § 404.1545(a)(1)) (internal quotations and alterations omitted). The claimant bears the burden of demonstrating the inability to return to past relevant work. See Plummer, 186 F.3d at 428. If the claimant is unable to return to past relevant work, at step five, the Commissioner must demonstrate that the claimant’s impairments do not preclude an adjustment to any other available work. See 20 C.F.R. §§ 404.1520(g), 416.920(g); Plummer, 186 F.3d at 428. In other words, the Commissioner must prove that “there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and [RFC].” Plummer, 186 F.3d at 428. The ALJ must analyze the cumulative effect of all the claimant’s impairments in determining whether he or she il

is capable of performing work and is not disabled. See id. The ALJ often seeks the VE’s assistance in making this finding. See id. B. Whether the ALJ’s Decision is Supported by Substantial Evidence Plaintiff's motion for summary judgment focuses on whether the ALJ properly evaluated the medical opinion evidence. (D.I. 15 at 6-17) In accordance with the revised regulatory framework for claims filed on or after March 27, 2017, which eliminated the treating physician rule, an ALJ is not required to give any “specific evidentiary weight, including controlling weight, to any medical opinion(s) . . ., including those from [a] medical source.” 20 C.F.R. §§ 404.1520c(a); 416.920c(a). Instead, the ALJ must consider the persuasiveness of all medical opinions based on the application of five factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors. Id. at §§ 404.1520c(a)- (c); 416.920c(a)-(c). The ALJ must explain how she considered the most important factors of supportability and consistency. Id. at §§ 404.1520c(b)(2); 416.920c(b)(2). “Consistency concerns the degree to which the opinion reflects the same limitations described in evidence from other sources, whereas supportability concerns the relevancy of objective medical evidence and degree of explanation given by the medical source to support the limitations assessed in the opinion.” Eader v. Saul, 2020 WL 10898140, at *3 (M.D. Pa. Nov. 20, 2020) (quoting Serowski v. Comm’r of Soc. Sec., 2020 WL 6383187, at[*12] -13 (N.D. Ohio Oct. 30, 2020)). There is no requirement for the ALJ to discuss or explain consideration of the remaining factors unless there are two or more medical opinions which are equally well supported and consistent with the record, but not exactly the same, in which case the ALJ must explain how she differentiated the opinions. 20 C.F.R. §§ 404.1520c(b)(2)-(3); 416.920c(b)(2)-(3).

In this case, the ALJ determined that the opinion of Plaintiffs treating source, Dr. Shertel, was not persuasive because the restrictive limitations therein were not supported by “the overall benign findings on mental status examinations throughout the relevant time period, including no signs of attention or concentration issues, no memory impairments, and good abilities in coping with her symptoms.” (D.I. 11 at 24) The ALJ observed that Plaintiff reported independence in her activities of daily living, and Plaintiffs medical records established that her condition improved with consistent treatment and medication management, allowing her to return to work on a part-time basis as a cashier. id.) Indeed, the ALJ relied on Dr. Shertel’s own treatment records showing that Plaintiff was alert, well nourished, well groomed, and exhibited no acute distress. (/d. at 570, 850, 853) The ALJ concluded that this evidence was inconsistent with Dr. Shertel’s opinion that Plaintiff had a “moderate severe” degree of impairment in “restriction of daily activities” and in the ability to “sustain work performance and attendance in a normal work setting.” (/d. at 787-88) In this regard, the ALJ directly addressed the limitations expressed in Dr. Shertel’s opinion and articulated why she found them to be inconsistent with Plaintiff's treatment notes and other evidence of record. The ALJ’s assessment of Dr. Shertel’s opinion meets the standard in the new regulations, and her determination is supported by substantial evidence. See Laicha v. Kijakazi, 2021 WL 3929739, at[*12] (M.D. Pa. Sept. ^[2], 2021) (upholding ALJ’s rejection of treating source opinion as unpersuasive because “the opinion was inconsistent with his treatment notes . . . as well as [the claimant’s] self- reported activities of daily living.”). The same is true of the ALJ’s determination that Ms. Chiekwu’s opinion was not persuasive because the restrictive limitations therein were not supported by “the overall benign findings on mental status examinations throughout the relevant time period, including no signs of attention or concentration issues, no memory impairments, and good abilities in coping with her symptoms.” (D.I. 11 at 24-25) Ms. Chiekwu opined that Plaintiff suffered moderately severe restrictions in her daily activities and severe restrictions in sustaining work performance and attendance and coping with the pressures of ordinary work, but this opinion is inconsistent with Ms. Chiekwu’s own treatment records. (/d.) Specifically, Ms. Chiekwu performed a series of mental status exams in which Plaintiff routinely presented as calm and relaxed, she spoke at a normal rate and volume, her affect was appropriate, and she exhibited no signs of hallucinations, delusions, bizarre behaviors, suicidal ideation, anxiety, or hyperactive or attentional difficulties. (Id. at 799, 808, 813) Ms. Chiekwu noted that, despite Plaintiff's subjective reports of depression and panic attacks, Plaintiff's mental status exam continued to reveal “no apparent serious mental status abnormalities,” with a normal attention span and intact memory and judgment. (Jd. at 816) Plaintiff's subjective reports of her mental limitations “will not alone establish that [she] is disabled” in the absence of “objective medical evidence from an acceptable medical source[.]” 20 C.F.R. §§ 404.1529(a); 416.929(a). Pursuant to 20 C.F.R. §§ 404.1520c(c)(2) and 416.920c(c)(2), “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§ 404.1520c(c)(2); 416.920c(c)(2). Thus, the inquiry regarding consistency is directed to the record as a whole, and not just to the narrow universe of medical opinions. See Laicha v. Kijakazi, 2021 WL 3929739, at[*12] (M.D. Pa. Sept. ^[2], 2021) (upholding ALJ’s rejection of treating source opinion as unpersuasive because “the opinion was inconsistent with his treatment notes . . . as well as [the claimant’s] self-reported activities of daily living.”). Here, the record as a whole contains substantial evidence in support of the ALJ’s conclusion that the limitations set forth in the opinions of Dr. Shertel and Ms. Chiekwu are not consistent with Plaintiff's benign mental status examinations and work history throughout the relevant time period. Mental status exams by other providers indicate that Plaintiff was well- groomed and calm, with normal affect and speech and intact short- and long-term memory. (D.^[1]. 11 at 579, 583, 589, 597-98, 606-07, 627, 633) Although Plaintiff exhibited some anxiety and depression, she routinely exhibited normal attention span and ability to concentrate, and she was alert and attentive. (/d. at 580, 585, 587, 592, 595, 600, 609, 630, 874, 902, 904, 906, 908, 910, 912, 914, 916, 918, 920, 922, 924) Moreover, Plaintiffs part-time work history during the relevant time period is at odds with Dr. Shertel’s opinion that Plaintiff cannot participate in a smal] group setting or be punctual and keep a schedule and Ms. Chiekwu’s opinion that Plaintiff lacks the focus and concentration necessary to sustain work performance and cope with the pressures of ordinary work. (Jd. at 876, 893, 927, 930-32) For these reasons, substantial evidence supports the ALJ’s decision to discount the opinions of Dr. Shertel and Ms. Chiekwu as not persuasive. Because these opinions were not equally well-supported by the administrative record, the ALJ was not required to consider additional factors under 20 C.F.R. §§ 404.1520c and 416.920c beyond consistency and supportability. 20 C.F.R. §§ 404.1520c(b)(2); 416.920c(b)(2); see also Galloway v. Comm’r of Soc. Sec., 2021 WL 4477145, at *4 (E.D. Pa. Sept. 30, 2021) (stating that the ALJ is obligated to compare the claimant’s routine and conservative medical records with the severe limitations identified in a medical opinion under the applicable case law and controlling regulations). Plaintiff also challenges the ALJ’s assessment of Dr. Singh’s opinion. (D.I. 15 at 12-14) The ALJ was persuaded by Dr. Singh’s conclusion that Plaintiff has only moderate limitations in functioning because his findings were consistent with the overall normal findings in Plaintiff's mental status examinations and Plaintiff's reported improvement with therapy and medication management. (D.I. 11 at 22-23) Although Plaintiff suggests that Dr. Singh identified abnormal findings in his mental status examination, Dr. Singh’s opinion suggests otherwise. Dr. Singh confirmed that Plaintiff was neatly groomed, her thought process showed no abnormality, and she had no hallucinations, paranoia, or suicidal or homicidal ideation. (D.I. 15 at 13; D.I. 11 at 779) Dr. Singh described Plaintiff as alert and oriented, and he reported that she had no deficits in immediate or remote memory. (D.I. 11 at 779) The only findings Plaintiff characterizes as “abnormal” are Dr. Singh’s notes that Plaintiff's affect was blunted and constricted to irritable mood, she was hyperverbal but was redirectable, and she had difficulty doing serial sevens. (/d.; D.I. 15 at 12) Plaintiff offers no authority to suggest that observations of this kind are sufficient to render a claimant’s mental status examination “abnormal.” Plaintiff also offers no authority in support of her position that a physician performing a consultative examination is required to review the claimant’s medical records. The ALJ’s assessment of Dr. Singh’s opinion is supported by substantial evidence in the form of his consultative examination notes, as well as Plaintiff's routinely benign mental status examinations and work history throughout the relevant time period.

4 The regulations provide that the Commissioner will order a consultative examination at its own expense if the claimant’s medical sources cannot or will not provide sufficient medical evidence about the impairment to make a disability determination. 20 C.F.R. §§ 404.1512; 404.1517; 416.912; 416.917. In these circumstances, the Commissioner “will also give the [consultative] examiner any necessary background information about [the claimant’s] condition.” Jd. The regulations do not articulate any particular level of consideration the consulting physician must give to the existing medical record, perhaps because the purpose of a consultative examination is’ to remedy a lack of evidence in the record. Regardless, Dr. Singh’s assessment demonstrates his awareness of Plaintiffs hospitalizations and psychiatric treatment. (D.I. 11 at 778)

V. CONCLUSION For the foregoing reasons, I recommend that the court DENY Plaintiff's motion for summary judgment (D.I. 14), and GRANT the Commissioner’s cross-motion for summary judgment (D.I. 16). This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed. R. Civ. P. 72(b)(2). The objection and responses to the objections are limited to ten (10) pages each. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App’x 924, 925 n.1 (3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987). The parties are directed to the court's Standing Order For Objections Filed Under Fed. R. Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website, http://www.ded.uscourts.gov.

Dated: January 31, 2022 Head Sherry R¥ Fall United States Magistrate Judge