Hill

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LATECIA S. HILL : CIVIL ACTION

:

v. :

:

KILOLO KIJAKAZI, :

Commissioner of Social Security : NO. 21-2775

O P I N I O N

SCOTT W. REID DATE: March 8, 2022

UNITED STATES MAGISTRATE JUDGE

Latecia S. Hill brought this action under 42 U.S.C. §405(g) to obtain review of the

decision of the Commissioner of Social Security denying her claim for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). She has filed a Request for

Review to which the Commissioner has responded. As explained below, I conclude that the

Request for Review should be denied and judgment entered in favor of the Commissioner.

I. Factual and Procedural Background

Hill was born on February 16, 1987. Record at 216. She completed high school and one

year of college. Record at 247. She worked in the past as a security guard, customer service

representative, and as a stock clerk. Id.

On or about June 12, 2019, Hill filed applications for DIB and SSI, asserting disability

since April 11, 2018, the date of a motor vehicle accident in which a commuter bus in which she

was a passenger was struck from the rear. Record at 216, 519. She asserted that she was

disabled by a brain injury, post-concussion symptoms, dizziness, giddiness, cognitive

communication deficit, nausea, cervicalgia, tinnitus, emotional lability, sleep problems, visual

problems, and shoulder and back injuries. Record at 246. Hill was pursuing litigation in

connection with the traffic accident at the time she applied for benefits. Record at 47.

Hill’s applications for DIB and SSI were denied on September 19, 2019. Record at 131,

136. On November 8, 2019, they were denied again upon reconsideration. Record at 129, 130.

Hill then requested a hearing de novo before an Administrative Law Judge (“ALJ”). Record at

147.

A hearing before an ALJ was held on April 2, 2020. Record at 33. On April 27, 2020,

however, the ALJ issued a written decision denying benefits. Record at 12. The Appeals

Council denied Hill’s request for review on May 14, 2021, permitting the ALJ’s decision to

serve as the final decision of the Commissioner of Social Security. Record at 1. Hill then filed

this action.

II. Legal Standards

The role of this court on judicial review is to determine whether the Commissioner’s

decision is supported by substantial evidence. 42 U.S.C. §405(g); Richardson v. Perales, 402

U.S. 389 (1971); Newhouse v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985). Substantial evidence

is relevant evidence which a reasonable mind might deem adequate to support a decision.

Richardson v. Perales, supra, at 401. A reviewing court must also ensure that the ALJ applied

the proper legal standards. Coria v. Heckler, 750 F.2d 245 (3d Cir. 1984); Palmisano v. Saul,

Civ. A. No. 20-1628605, 2021 WL 162805 at *3 (E.D. Pa. Apr. 27, 2021).

To prove disability, a claimant must demonstrate that there is some “medically

determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful

activity’ for a statutory twelve-month period.” 42 U.S.C. §423(d)(1). As explained in the

following agency regulation, each case is evaluated by the Commissioner according to a five-

step process:

(i) At the first step, we consider your work activity, if any. If you are doing substantial

gainful activity, we will find that you are not disabled. (ii) At the second step, we

consider the medical severity of your impairment(s). If you do not have a severe

medically determinable physical or mental impairment that meets the duration

requirement in §404.1590, or a combination of impairments that is severe and meets the

duration requirement, we will find that you are not disabled. (iii) At the third step, we

also consider the medical severity of your impairment(s). If you have an impairment(s)

that meets or equals one of our listings in appendix 1 of this subpart and meets the

duration requirement, we will find that you are disabled.

20 C.F.R. §404.1520(4) (references to other regulations omitted).

Before going from the third to the fourth step, the Commissioner will assess a claimant’s

residual functional capacity (“RFC”) based on all the relevant medical and other evidence in the

case record. Id. The RFC assessment reflects the most an individual can still do, despite any

limitations. SSR 96-8p.

The final two steps of the sequential evaluation then follow:

(iv) At the fourth step, we consider our assessment of your residual functional capacity

and your past relevant work. If you can still do your past relevant work, we will find that

you are not disabled. (v) At the fifth and last step, we consider our assessment of your

residual functional capacity and your age, education, and work experience to see if you

can make an adjustment to other work. If you can make the adjustment to other work, we

will find that you are not disabled. If you cannot make an adjustment to other work, we

will find that you are disabled.

Id.

III. The ALJ’s Decision and the Claimant’s Request for Review

The ALJ determined that Hill suffered from the severe impairments of post-concussion

syndrome, cervical and lumbar degenerative disc disease, and obesity. Record at 14. She

acknowledged that Hill had been diagnosed with psychiatric impairments, but found that the

limitations resulting from those impairments were adequately accommodated by limitations

imposed in the Residual Functional Capacity (“RFC”) to address “resolving post-concussion

syndrome.” Record at 15-16. The ALJ did not find Hill to suffer from a severe shoulder or knee

impairment. Record at 16. She went on to determine that no impairment or combination of

impairments met or medically equaled a listed impairment. Record at 16-17.

The ALJ found that Hill retained the RFC to perform light work, but that she was limited

to work requiring simple, routine tasks; work that was as “self-paced as possible, meaning that

any production criteria can be made up by the end of the workday or shift;” few workplace

changes, “meaning that the same duties can be performed at the same station or location from

day to day,”; no contact with the general public; occasional interaction with coworkers and

supervisors; no exposure to unprotected heights or unprotected moving mechanical parts;

occasional exposure to loud noise; occasional stooping, crouching, crawling, kneeling, and

climbing ramps and stairs; and no climbing ladders, ropes, or scaffolds. Record at 19.

Relying upon the testimony of a vocational expert (“VE”) who appeared at the hearing,

the ALJ determined that Hill could not return to her prior work, but that she could still work as a

packer, inspector/sorter, or assembler. Record at 26-27. She decided, therefore, that Hill was

not disabled. Record at 28.

In Hill’s Request for Review, she argues that the ALJ failed to accord proper weight to

the limitations specified by her treating doctor, Mary Brownsberger, Psy.D. She also argues that

the ALJ mischaracterized the medical evidence as to her physical impairments. Further, Hill

maintains that the ALJ failed to consider the combined effect of her impairments and the

resulting exertional and non-exertional limitations. Finally, she argues that the ALJ proposed

hypothetical questions to the VE which failed to take all of her limitations into account.

IV. Discussion

A. Dr. Brownsberger’s Opinions

Mary Brownsberger, Psy. D., director of psychology for the Good Shepherd

Rehabilitation Network, submitted to the record a Post Traumatic Brain Injury RFC

Questionnaire and a Mental Impairment Questionnaire, both dated March 16, 2020. In the Post

Traumatic Brain Injury Questionnaire, she reported that she provided Hill with weekly

“psychological treatment.” Record at 1223.

Dr. Brownsberger listed Hill’s diagnoses as post-concussion syndrome, PTSD, and a

severe major depressive disorder. Id. She described her as suffering from intermittent severe

headaches, dizziness, vertigo, nausea, sensitivity to light, visual disturbances, mood changes, and

mental confusion/inability to concentrate, as well as exhaustion, irritability, and muscle strain.

Record at 1224. Dizziness occurred multiple times daily, upon arising from bed or from a seated

position, and lasted 1-5 minutes per episode. Record at 1224, 1226. Headaches, also occurring

multiple times daily, lasted from 30-60 minutes, and were only resolved by lying down in a dark

room. Record at 1224-1225. Nevertheless, Hill’s headaches were treated with only over-the-

counter medications, such as Excedrin. Record at 1227. Dr. Brownsberger asserted that an MRI

substantiated the existence of Hill’s headaches. Record at 1225.

According to Dr. Brownsberger, Hill would not be able to work while experiencing a

headache. Record at 1227. She would need hourly unscheduled breaks, each lasting over an

hour. Record at 1227-1228. Hill would also be absent more than four times a month as a result

of her impairments or treatment. Record at 1228.

In the Mental Impairment Questionnaire, Dr. Brownsberger listed the following “signs

and symptoms” of mental illness: decreased energy, thoughts of suicide, a blunt affect, feelings

of guilt or worthlessness, impairment in impulse control, generalized persistent anxiety, mood

disturbance, difficulty thinking or concentrating, recurrent and intrusive recollections of past

trauma, psychomotor agitation or retardation, motor tension, emotional lability, vigilance,

memory impairment, sleep disturbance, recurrent severe panic attacks, and “psychological or

behavioral abnormalities association with a dysfunction of the brain with a specific organic

factor.” Record at 1231.

According to Dr. Brownsberger, Hill had marked restrictions in her activities of daily

living and in concentration, persistence or pace; and moderate difficulties in social functioning.

Record at 1232. She had one or two “repeated episodes of decompensation within a 12-month

period, each of at least two weeks’ duration.” Id.

The ALJ found neither of Dr. Brownsberger’s reports to be persuasive. Record at 25, 26.

As to both reports, she noted that: (a) no records in the file confirmed that Dr. Brownsberger ever

treated or even examined Hill, and that “more importantly” (b) the record did not support the

extensive limitations set forth in her reports. Record at 26.

As the ALJ accurately reported, there are no notes in the record from Dr. Brownsberger.

Hill’s brief states that Dr. Brownsberger is the director of “the facility where Plaintiff treated

twice per week for occupational and physical therapy from June 2018 through July 2019,”

adding that “according to Plaintiff, she was evaluated consistently by Dr. Brownberger [sic]

throughout the course of her treatment at Good Sheppard [sic] and currently remains under Dr.

Brownberger [sic]’s care.” Brief in Support of Request for Review at unpaginated CMEC page

12. Medical records from Good Shepherd Rehabilitation Network reflect physical and

occupational therapy for neck and back dysfunction between April 23, 2018 and April 29, 2019.

Record at 712-1125.

Dr. Brownsberger, however, identified herself as the director of psychology at Good

Shepherd, and it seems unlikely that in this capacity she would supervise the work of a physical

or occupational therapist. If, however, this was Dr. Brownsberger’s role, it would not provide

her with a basis for the opinions set forth in her reports, particularly those in the Mental

Impairment Questionnaire.

Nevertheless, Hill stated at her hearing that she continued to treat weekly with a

“neuropsychologist.” Record at 47. Further, Dr. Brownsberger indicated that she provided Hill

with weekly psychological therapy. Record at 1223. It is likely that Dr. Brownsberger acted as

Hill’s therapist, but that Hill did not submit her records as part of her application.

If this is the case, the ALJ would be justified in finding that the absence of treatment

records undermined the reliability of Dr. Brownsberger’s questionnaires. The opinions she

expressed there could not be compared for consistency with her own contemporary notes or

testing. See, e.g., Church v. Commissioner of Social Security, Civ. A. 19-12409, 2020 WL

1847674 at *7 (D.N.J. Apr. 13, 2020) (affirming an ALJ who found that “Plaintiffs’ treating

physicians’ ‘checkbox’ opinions were generally not consistent with their treatment notes”), and

Dee v. Berryhill, Civ. A. No. 17-73, 2018 WL 783733 at *2 (W.D. Pa. Feb. 8, 2018) (also

affirming an ALJ who rejected a “checkbox questionnaire” which was unsupported by

contemporaneous treatment notes).

Further, as the ALJ noted, even more significant than the lack of treatment notes from Dr.

Brownsberger is the fact that her opinions are inconsistent with the other evidence of record.

The earliest mental health treatment reflected in the file is a psychiatric evaluation performed on

July 27, 2018, by Teresa Duda, LCSW. Record at 431. Hill reported a history of short-term

mental health counseling for “relationship issues,” but no inpatient treatment. Record at 431-2.

Hill reported “neuropsychiatric sequalae” of a traumatic brain injury sustained in the bus

accident. Record at 431. According to Ms. Duda, however, a May 3, 2018, MRI of Hill’s head

showed “no evidence of acute intracranial hemorrhage.” Id.

At that time, Hill was fully oriented and appropriate in her appearance and alertness, with

pleasant behavior. Record at 433. She had normal speech and language, logical and goal-

directed quality of thought, and relevant/coherent thought content, as well as good concentration,

intact memory and “sufficient” attention. Id. She told Ms. Duda that she had been having

general suicidal thoughts. Record at 433-4. However, she had no history of suicide attempts.

Record at 434. Ms. Duda diagnosed Hill with an adjustment disorder with mixed anxiety and

depressed mood. Id.

On June 10, 2019, Hill was seen by Angela Groller at a facility called Concern. Record

at 392. Ms. Groller’s note states: “Had a concussion shortly over a year ago which she believes

is the start of the change in her mental health.” Record at 393. Upon examination, Hill was

disheveled, but was fully oriented and displayed goal directed thought processes with good

judgment and insight, attentive concentration, and no sign of hallucinations, delusions,

obsessions or compulsions. Record at 399. However, she reported suicidal thoughts daily, and a

lack of desire to be involved with her family. Record at 400.

On June 17, 2019, Hill was again seen at Concern, this time by Amber Karom, LSW,

MSW. Record at 401. Ms. Karom reported: “Latecia suffered a brain injury a year ago and is

having a hard time concentrating, controlling her temper and regulating her moods.” Record at

402. The Record contains no further notes from Concern.

The most recent records of mental health treatment are two therapy notes from Valley

Geropsych LLC, dated January 8 and February 7, 2020, and authored by Dr. Raja Abbas.

Record at 1150-1157. Dr. Abbas described Hill on both occasions as anxious and depressed, and

with paranoid thought content. Record at 1151-2. She was, however, fully oriented and well-

groomed with no unusual behaviors, good eye contact, normal speech, goal directed and logical

thought processes with an intact memory, fair insight, judgment, and impulse control. Id., and

1155-6. These reports do not support the existence of the extreme mental health symptoms

reported by Dr. Brownsberger in the Mental Health RFC Questionnaire.

The ALJ also had before him the reports from reviewing agency mental health specialists,

Karen Plowman, DO, and Francis Murphy, Ph.D. Record at 67-8 (Plowman) and 102-103

(Murphy). Both Dr. Plowman and Dr. Murphy found Hill to have moderate limitations in the

ability to understand, remember or apply information, and in maintaining concentration,

persistence or pace; and mild limitations in the ability to interact with others, and the ability to

adapt or manage oneself. Record at 68, 103. The ALJ found these reports persuasive, as they

were more consistent with the other evidence of record than were Dr. Brownsberger’s. Record at

24-5. She made the same findings as to the severity of Hill’s mental impairments. Record at 17-

18.

Nor were the physical aspects of Dr. Brownsberger’s assessments strongly supported by

the evidence of record. She wrote that a head MRI substantiated the existence of Hill’s

headaches, but the only head MRI in the Record, dated May 4, 2018, was normal. Record at

473. An MRI of the cervical spine of the same day showed no compression fracture or

subluxation (dislocation). Record at 481.

Also notable was that, despite her indication that Hill was essentially disabled by her

headaches, Dr. Brownsberger wrote that Hill treated the headaches with only over-the-counter

medications. Record at 1227. This is confirmed by the note from a May 13, 2019, visit with

Tamara Callender, CRNP, of Lehigh Valley Health Network, who wrote: “Ms. Hill reports that

she has headaches rated severe. They are daily … She takes Excedrin or Tylenol ES.” Record at

416. Further, Hill did not mention multiple daily headaches to Dr. Abbas or at Concern.

As the ALJ noted, Hill was found to have abnormalities in eye testing, and was treated at

the Good Shepherd Vision Center between February and May, 2019. Record at 22, 371-390.

The note from her final visit, however, included this notation: “Reviewed that her visual

symptoms have improved but she does not feel any better, which is suggestive that … the

underlying etiology of her symptoms may not related [sic] to her incidental vision findings.”

Record at 389.

Aside from discussing the “rather benign” diagnostic and clinical examination findings,

the ALJ also found “compelling” the fact that Hill did not seek medical treatment until April 13,

2018, two days after the bus accident, at which time she reported to the emergency room at St.

Luke’s Hospital that she had a “mild headache” but explicitly “denied head injury.” Record at

26, 519.

Hill returned to the St. Luke’s emergency room on April 18, 2018, telling staff that the

medications she obtained on her last visit were not relieving her pain. Record at 515, 519. At

that time, she reported a headache, although “no obvious injury occurred” at the time of the

accident. Record at 518. This visit ended when Hill “ripped out her IV and walked out from

treatment room and left facility” after receiving Toradol, Reglan and Valium. Record at 519.

Emergency room staff wrote: “Patient appeared drug-seeking in the emergency department and

also had malingering tendencies, complaints for apparent minor MVC.” Record at 517-518.

Considered as a whole, therefore, the substantial evidence of record supported the ALJ in

deciding that Dr. Brownsberger’s findings were not persuasive. Further, the ALJ discussed this

evidence in detail. Her treatment of Dr. Brownsberger’s reports does not, therefore, provide any

basis for disturbing her decision.

B. Hill’s Physical Impairments: Her Cervical and Lumbar Spine

Regarding Hill’s allegations of physical impairment, the ALJ wrote:

The claimant’s endorsed symptoms, and subsequent diagnoses and treatment, are out of

proportion with the objective evidence. With regard to her physical complaints, the

claimant had normal x-ray imaging of the cervical and lumbar spines, left shoulder, left

knee and chest, and a normal MRI of the brain. Later, cervical and lumbar MRIs showed

some degenerative changes, but no central canal or foraminal stenosis at any level. Dr.

Mortazavi [of Valley Pain Specialists]’s review of the reports, however, led him to

diagnose contradictorily spinal stenosis in the lumbar region with neurogenic claudication

and spinal stenosis of the cervical region, for which he provided epidural steroid

injections.

Record at 23.

Hill challenges this conclusion as relying on x-ray evidence rather than MRI evidence.

Plaintiff’s Brief at CMEC page 17. However, the ALJ clearly cited “cervical and lumber MRIs.”

Further, the 2018 MRIs cited by Hill are consistent with the ALJ’s analysis of the evidence. A

December 1, 2018, MRI of the cervical spine showed “no significant disc protrusion, spinal or

foraminal stenosis” at most levels, and a small protrusion “but without significant spinal or

foraminal stenosis” at C6-7. Record at 1127. A December 28, 2018, MRI of the lumbar spine

was even more benign, showing “no significant disc protrusion, spinal or foraminal stenosis.”

Record at 1226. These MRI reports were forwarded from Valley Pain Specialists. Yet, as the

ALJ observed, it is impossible to see how MRIs finding “no stenosis” support Dr. Mortazevi’s

diagnosis of lumbar and cervical spinal stenosis. Record at 1131.

As the ALJ also noted, Hill was discharged from physical and occupational therapy for

failing to attend sessions by two different providers, Lehigh Valley Hospital and Good Shepherd.

Record at 428, 810. This failure to participate in therapies may be considered inconsistent with

Hill’s complaints of physical pain and limitation.

C. The Combination of Hill’s Impairments

Hill argues that the ALJ did not comply with law compelling her to consider the

combined effect of Hill’s impairments. The law she cites, however, directs an ALJ to consider

even non-severe impairments when assessing disability. 42 U.S.C. § 423(d)(2)(c). The ALJ in

this case found Hill’s post-concussion syndrome – which included her psychiatric symptoms and

apparently her headaches, all of which she argues are a result of the traffic accident – and her

cervical and lumber degenerative disc disease to be severe impairments, along with her obesity.

Record at 14. The law Hill cites is, therefore, irrelevant to her argument that the ALJ failed to

consider her “lumbar and cervical pain, cognitive deficiencies, balance and vestibular issues,

migraine headaches [and] significant mental health issues.” Request for Review at unpaginated

page 13.

In any event, the RFC assessment reached by the ALJ included limitations designed to

ameliorate Hill’s cognitive difficulties and difficulties in interacting with people, and also

included postural limitations to address her back pain. Record at 19. The ALJ addressed Hill’s

alleged balance/vestibular issues by providing that she could not be exposed to heights or

moving mechanical parts, or climb ladders, ropes or scaffolds. Id.

It is apparent that the ALJ did not credit Hill’s allegation that her headaches required her

to take multiple hour-long rest sessions per day. Substantial evidence supports the ALJ in this.

For one thing, the sole medical provider who endorsed the multiple daily headaches is Dr.

Brownsberger, who appears to have been Hill’s therapist. Dr. Brownsberger had a doctorate in

psychology, but she was not a medical doctor (i.e., an MD or a DO), and was not qualified to

diagnose the nature of Hill’s headaches. Nor could the ALJ determine whether Hill complained

to Dr. Brownsberger of severe headaches during their treating relationship, because her notes

were not in the record.

Secondly, even though Hill’s headaches were alleged to be essentially crippling, Hill

treated them with only over-the-counter medications. Record at 416, 1127. As of the date of

Hill’s hearing before the ALJ, no care provider had prescribed anything stronger. What is more,

no care provider referred Hill to a neurologist or other doctor qualified to diagnose and treat

headache. If they did, Hill has not included the specialist’s treatment notes.

Thus, the ALJ’s RFC assessment adequately addressed the combination of Hill’s

impairments. Hill has not shown a basis for relief in this regard.

D. The ALJ’s Hypothetical Questions to the VE

Finally, Hill argues that the hypothetical questions posed by the ALJ to the VE at the

hearing failed to accurately reflect all her limitations, and that, therefore, the VE evidence was

not reliable. Plaintiff’s Brief at CMEC page 16. She specifically mentions limitations involving

her cervical and lumbar spine, and her need to “lay down and rest for hours at a time” because of

her headaches. Id. Unsurprisingly, the VE testified that “the need to lie down hourly, for over

an hour each time” would preclude Hill from engaging in full-time work. Record at 59.1

Although a hypothetical question posed to a vocational expert must reflect all of a

claimant’s impairments, this does not mean that it must include every impairment alleged by the

1 Despite Hill’s representations, however, the VE did not testify that limitations regarding her spine would render

her unable to work. On the contrary, she testified that there was work Hill could perform even if limited to the

sedentary exertional level. Record at 58-59.

claimant. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). Instead, it need only

contain credibly established limitations. Zirnsak v. Colvin, 777 F.3d 607, 614-615 (3d Cir.

2017); Rutherford, supra. Where a limitation is supported by some medical evidence, but is

opposed by other evidence, the ALJ has the discretion to choose whether or not to include it in

the hypothetical. Zirnsak at 615.

As discussed above, Hill has not proved the existence of credibly established limitations

which were not recognized by the ALJ, and she certainly has not shown the existence of

limitations which are not opposed by some of the medical evidence. She has not, therefore,

shown an error in the hypothetical questions posed by the ALJ to the vocational expert.

V. Conclusion

In accordance with the above discussion, I will enter an Order of even date directing that

Hill’s Request for Review be denied, and judgment entered in favor of the Commissioner.

BY THE COURT:

/s/ Scott W. Reid

___________________________________

SCOTT W. REID

UNITED STATES MAGISTRATE JUDGE