Huber v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MARCIA JEAN HUBER,

Plaintiff, CIVIL ACTION NO. 3:20-CV-00921

v. (SAPORITO, M.J.)

KILOLO KIJAKAZI,1 Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM

In this matter, the plaintiff, Marcia Jean Huber, seeks judicial

review of the final decision of the Commissioner of Social Security

denying her claim for disability insurance benefits, pursuant to 42 U.S.C.

§ 405(g). The matter has been referred to the undersigned United States

magistrate judge on consent of the parties, pursuant to 28 U.S.C. § 636(c)

and Fed. R. Civ. P. 73.

1 Kilolo Kijakazi became the Acting Commissioner of Social

Security on July 9, 2021. She has been automatically substituted in place

of the original defendant, Andrew Saul. See Fed. R. Civ. P. 25(d); see also

42 U.S.C. § 405(g) (action survives regardless of any change in the person

occupying the office of Commissioner of Social Security). The caption in

this case is amended to reflect this change.

I. BACKGROUND

On May 13, 2016, Huber protectively filed an application for

disability insurance benefits, asserting a disability onset date of July 27,

2015. Her claim was initially denied by state agency reviewers on

September 20, 2016. The plaintiff then requested an administrative

hearing.

A hearing was subsequently held on October 1, 2018, before an

administrative law judge, Daniel Balutis (the “ALJ”). In addition to the

plaintiff herself, the ALJ received testimony from an impartial vocational

expert, Tanja H. Hubacker. The plaintiff was represented by counsel at

the hearing.

On November 7, 2018, the ALJ denied Huber’s application for

benefits in a written decision. The ALJ followed the familiar five-step

sequential evaluation process in determining that Huber was not

disabled under the Social Security Act. See generally Myers v. Berryhill,

373 F. Supp. 3d 528, 534 (M.D. Pa. 2019) (describing the five-step

sequential evaluation process). At step one, the ALJ found that Huber

had not engaged in substantial gainful activity since her alleged

disability onset date. At step two, the ALJ found that Huber had the

severe impairments of: spinal stenosis; degenerative disc disease of the

lumbar spine with L4-5 spondylolisthesis; bilateral sacroiliac joint

dysfunction; left greater trochanteric bursitis; osteoarthritis of the right

hip; degenerative joint disease of the left knee; and obesity. At step three,

the ALJ found that Huber did not have an impairment or combination of

impairments that meets or medically equals the severity of an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

Between steps three and four of the sequential-evaluation process,

the ALJ assessed Huber’s residual functional capacity (“RFC”). See

generally Myers, 373 F. Supp. 3d at 534 n.4 (defining RFC). After

evaluating the relevant evidence of record, the ALJ found that Huber had

the RFC to perform “light work” as defined in 20 C.F.R. § 404.1567(b),2

with the following limitations:

[S]he is limited to frequently balancing, stooping,

kneeling, crouching, climbing ramps or stairs; frequent

pushing and pulling of the bilateral upper extremities;

never climbing ladders, ropes, or scaffolds; and

frequent exposure to unprotected heights, moving

mechanical parts, humidity, wetness, cold, extreme

heat, or vibration.

2 The Social Security regulations define “light work” as a job that

“involves lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).

(Tr. 16.)

In making these factual findings regarding Huber’s RFC, the ALJ

considered her symptoms and the extent to which they could reasonably

be accepted as consistent with the objective medical evidence and other

evidence of record. See generally 20 C.F.R. § 404.1529; Soc. Sec. Ruling

16-3p, 2017 WL 5180304 (revised Oct. 25, 2017). The ALJ also considered

and articulated how he weighed the various medical opinions in the

record. See generally 20 C.F.R. § 404.1527; Soc. Sec. Ruling 96-2p, 1996

WL 374188.

At step four, based on this RFC and on testimony by the vocational

expert, the ALJ concluded that Huber was capable of performing her past

relevant work as a store manager (DOT # 185.167-046), which was “light

work” as generally performed.3 Based on this finding, the ALJ concluded

that Huber was not disabled for Social Security purposes.

The plaintiff sought further administrative review of her claims by

3 The ALJ acknowledged that Huber’s past relevant work as a store

manager was actually performed at a “heavy” exertional level. But the

step-four inquiry asks whether a claimant can meet the demands of past

relevant work “either as the claimant actually performed it or as

generally performed in the national economy.” See 20 C.F.R.

§ 404.1560(b)(2).

the Appeals Council, but her request was denied on May 5, 2020, making

the ALJ’s November 2018 decision the final decision of the Commissioner

subject to judicial review by this court.

The plaintiff timely filed her complaint in this court on June 8,

2020. The Commissioner has filed an answer to the complaint, together

with a certified copy of the administrative record. Both parties have filed

their briefs, and this matter is now ripe for decision.

II. DISCUSSION

Under the Social Security Act, the question before this court is not

whether the claimant is disabled, but whether the Commissioner’s

finding that he or she is not disabled is supported by substantial evidence

and was reached based upon a correct application of the relevant law. See

generally 42 U.S.C. § 405(g)(sentence five); id. § 1383(c)(3); Myers, 373 F.

Supp. 3d at 533 (describing standard of judicial review for social security

disability insurance benefits and supplemental security income

administrative decisions).

Huber asserts on appeal that the ALJ’s decision is not supported by

substantial evidence because: (1) the ALJ erroneously found that her

depression was not a medically determinable impairment; and (2) the

ALJ erred in determining that Huber was capable of performing a limited

range of light work when the only relevant medical opinions of record

suggested a sedentary exertional limitation at best.

A. Medically Determinable Mental Impairment

At step two, in addition to the several physical impairments found

by the ALJ to be severe, the ALJ considered whether Huber had a

medically determinable impairment of depression. The ALJ reviewed the

medical evidence of record, as well as Huber’s subjective complaints and

the medical opinion of a state agency psychological consultant.

Ultimately, the ALJ concluded that Huber’s reported depression was not

a medically determinable impairment, and as a consequence, the ALJ did

not consider any impairments as a result of depression in his evaluation

of Huber’s RFC at step four.

In support of his decision, the ALJ stated:

[T]he claimant reported depression as a disabling

condition; however, the undersigned does not find this

as [a] medically determinable impairment. . . . [T]he

Act define[s] a “physical or mental impairment” as an

impairment that results from anatomical,

physiological or psychological abnormalities, which are

demonstrable by medically acceptable clinical and

laboratory diagnostic techniques. Based on the

claimant’s complaints and treatment history her

functional limitations were due to physical symptoms,

not psychological, and her ongoing treatment notes did

not mention any abnormal mental health clinical

findings. In addition, on multiple occasions, she denied

depression.

Nevertheless, on September 20, 2016, the state

agency psychological consultant, John N. Grutkowski,

Ph.D., reviewed the record, and found the claimant’s

activities of daily living mildly restricted, social

functioning mildly restricted, concentration,

persistence, or pace mildly restricted, and no repeated

episodes of decompensation. Therefore, Dr.

Grutkowski found the claimant’s mental health

condition as nonsevere. The undersigned gives this

opinion partial weight. The record as a whole does not

support Dr. Grutkowski’s opinion that depression was

a medically determinable impairment, and this finding

appeared to be based on the claimant’s allegation of

depression only. Yet, the finding that it was not severe

was based on the consistent normal psychological

findings. Thus, the undersigned does not consider

depression in the residual functional capacity in step 4

below because it is not a medically determinable

impairment.

(Tr. 14 (citations omitted).)

As the ALJ noted, a “medically determinable impairment” is one

“that results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical

and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). The ALJ

determined that the medical evidence of record did not document any

formal diagnosis or clinical findings with respect to depression, and we

are unable to find any either in our review of the administrative record.

A plaintiff’s own statements “of symptoms, a diagnosis, or a medical

opinion” may not be used to establish the existence of a medically

determinable impairment. 20 C.F.R. § 404.1521; see also Delgado v.

Comm’r of Soc. Sec., Civ. No. 20-283, 2021 WL 1686704, at *5 (D.N.J.

Apr. 29, 2021).

The plaintiff points to the opinion of non-examining state agency

medical consultant, Dr. Grutkowski, in support of her contention that she

had a medically determinable mental impairment due to depression. An

ALJ is required to evaluate every medical opinion in the record,

regardless of the source of the opinion. 20 C.F.R. § 404.1527(c). Because

state agency medical and psychological consultants are “highly qualified

physicians and psychologists who are also experts in Social Security

disability evaluation,” the ALJ must consider their findings as opinion

evidence. Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *4; see also Poulos

v. Comm’r of Soc. Sec., 474 F.3d 88, 93 n.2 (3d Cir. 2007).

In determining the appropriate weight to which a non-treating

source’s medical opinion is entitled, the ALJ must consider the following

factors: (1) whether the medical source actually examined the claimant;

(2) the degree to which the medical opinion is supported by relevant

evidence; (3) the degree to which the medical opinion is consistent with

the record as a whole; and (4) the medical source’s specialization. 20

C.F.R. § 404.1527(c)(1) & (3)–(5). In addition, the ALJ must consider any

other factors that tend to support or contradict the medical opinion, but

only if brought to his attention. See id. § 404.1527(c)(6). Here, the ALJ

clearly articulated his consideration of factors (1), (2), and (3), and there

is nothing in the record to indicate the specialization of the state agency

medical consultant. (See Tr. 14.) Thus, we find the ALJ’s discounting of

Dr. Grutkowski’s opinion, which he assigned only “partial weight,” was

supported by substantial evidence and was reached based upon a correct

application of the relevant law.

Moreover, we find the ALJ correctly determined that Dr.

Grutkowski’s opinion appeared to be based entirely on the claimant’s own

allegation of depression—the only medical evidence cited in support was

a finding by a consultative examining physician, Ziba Monfared, M.D.,

that Huber suffered from a “mood disorder.” (See Tr. 95.) Reference to the

consultative examining physician’s report reveals that this examining

internist’s “mood disorder” finding was based entirely on Huber’s own

self-reported history of mood disorder. (See Tr. 380.)

Thus, in the absence of any objective medical evidence of

depression, we find there is substantial evidence to support the ALJ’s

finding that Huber’s reported depression was not a medically

determinable impairment. See Scipio v. Comm’r of Soc. Sec., 611 Fed.

App’x 99, 101–02 (3d Cir. 2015) (per curiam). Because the ALJ is only

required to consider medically determinable impairments, see 20 C.F.R.

§§ 404.1521, 404.1545(a)(2), the ALJ’s failure to consider the plaintiff’s

alleged mental impairment of depression in determining her RFC was

not in error. See Switzer v. Comm’r of Soc. Sec., No. 1:18-cv-16554-NLH,

2019 WL 5485526, at *6 (D.N.J. Oct. 24, 2019) (finding that, in

determining a claimant’s RFC, “the ALJ does not need to consider any

alleged conditions that are not medically determinable”).4

4 We further note that, even if Dr. Grutkowski’s opinion had been

fully credited and the ALJ had found a medically determinable

impairment of depression, any error would be harmless, as Dr.

Grutkowski further found that Huber’s depression was not a severe

impairment, and she was only subject to mild mental functioning

limitations, with no episodes of decompensation. See Applewhite v.

Colvin, 54 F. Supp. 3d 945, 954 (N.D. Ill. 2014) (finding that non-severe

depression, with “mild at best” limitations and no episodes of

decompensation, was “no more than a ‘slight abnormality,’” with no

“significant effect on [the claimant’s] ability to work,” and “not significant

(continued on next page)

B. Physical RFC Determination

In assessing her RFC, the ALJ found that Huber was able to

perform light work, subject to certain postural and environmental

limitations. As we have noted in the margin above, light work involves

lifting no more that 20 pounds at a time, with frequent lifting or carrying

of objects weighing up to 10 pounds. See 20 C.F.R. § 404.1567(b).

The administrative record includes two medical opinions with

respect to Huber’s functional limitations, both of which were assigned

“partial weight” by the ALJ.

Huber’s treating physician, John Kline, M.D., recorded three

relevant medical opinions. In treatment notes for a September 21, 2015,

examination, Dr. Kline opined that Huber was restricted from “returning

to her pre-injury job,” and that she “more probably than not” would be

released “to a sedentary capacity of work.” (Tr. 228.) On October 9, 2015,

Dr. Kline completed an “injury status report” in which he opined that

Huber could return to modified work, subject to the following limitations:

Huber could sit for up to eight hours per workday, but she could only

enough to warrant the imposition of any additional non-exertional RFC

limitations”).

stand or walk up to four hours per workday; she could lift no more than

10 pounds at any time; she could never reach overhead, and she could

only occasionally bend, reach, climb, squat, rotate, twist, or kneel. (Tr.

466.) In treatment notes for a November 17, 2015, examination, Dr. Kline

opined that Huber continued to be precluded from “performing her pre-

injury job,” but he she could be released “to a sedentary light modified

capacity level of work.” (Tr. 230.) All three of Dr. Kline’s opinions were

consistent with a limited range of sedentary work, as defined by the

agency’s regulations. See 20 C.F.R. § 404.1567(a) (“Sedentary work

involves lifting no more than 10 pounds at a time and occasionally lifting

or carrying articles like docket files, ledgers, and small tools.”). The ALJ

considered these opinions by Dr. Kline and assigned them “partial

weight.” (Tr. 19–20.)

On September 14, 2016, a state agency consultative examining

physician, Ziba Monfared, M.D., performed an internal medicine

examination. Together with his examination report, Dr. Monfared

completed a medical source statement of ability to do work-related

physical activities. In his statement, Dr. Monfared opined that Huber

was capable of: occasionally lifting or carrying up to 20 pounds, but no

amount of weight frequently; sitting no more than two hours and

standing or walking no more than one hour each per workday;

ambulating no more than 10 meters without the use of a cane; frequent

use of her hands to reach, handle, finger, feel, push, or pull, but only

occasional use of her feet to operate foot controls; occasional balancing,

stooping, or climbing of stairs or ramps, but no kneeling, crouching,

crawling, or climbing of ladders or scaffolds; occasional exposure to

unprotected heights, operating a motor vehicle, humidity or wetness,

dust, odors, fumes, or other pulmonary irritants; and no exposure to

moving mechanical parts, extreme cold, extreme heat, or vibrations. (Tr.

384–89.) The sit/stand/walk limitations would have precluded all full-

time work; otherwise, Dr. Monfared’s opinions were consistent with a

limited range of sedentary work. See 20 C.F.R. § 404.1567(a). The ALJ

considered these opinions by Dr. Monfared and assigned them “partial

weight.” (Tr. 19.)

The plaintiff does not challenge the ALJ’s consideration of these

medical opinions or the weight assigned to them, per se, but rather she

challenges the ALJ’s subsequent determination that she was capable of

performing a limited range of light work without any medical evidence to

support that greater level of exertional capacity. Although the ALJ only

partially rejected the medical opinions of Dr. Kline and Dr. Monfared,

neither of the doctors’ opinions provided any support for a finding that

Huber was capable of performing anything more than sedentary work—

and Dr. Monfared’s opinions included a sit/stand/walk limitation

consistent with total disability.

The record in this case does not support a finding that Huber could

do light work as defined in the regulations—one physician believes she is

totally disabled, and the other said she could do sedentary work. See

Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986). “Generally, an ALJ may

not reject all of the medical opinions in the record and assess an RFC that

is greater than found by the medical professionals.” Dennis v. Colvin,

Civil Action No. 3:13-CV-2537, 2015 WL 1608714, at *8 (M.D. Pa. Apr.

10, 2015); see also Doak, 790 F.2d at 29 (“No physician suggested that the

activity [the claimant] could perform was consistent with the definition

of light work set forth in the regulations, and therefore the ALJ’s

conclusion that he could is not supported by substantial evidence.”);

House v. Colvin, Civil No. 3:12-CV-02358, 2014 WL 3866072, at *8 (M.D.

Pa. Aug. 6, 2014) (“Rarely can a decision be made regarding a claimant’s

residual functional capacity without an assessment from a physician

regarding the functional abilities of the claimant.”). Here, the ALJ’s

decision to discredit—at least partially—the opinions of both Dr. Kline

and Dr. Monfared left the ALJ without a single medical opinion upon

which to base his determination that Huber had the residual functional

capacity to perform light work. See House, 2014 WL 3866072, at *8.

Under these circumstances, it is clear that the ALJ relied on his own “lay

intuition” in concluding that Huber was able to perform light work over

the course of a full 8-hour workday. See id.5

Accordingly, in light of the foregoing, we are unable to conclude that

substantial evidence supports the ALJ’s RFC determination.

III. CONCLUSION

Based on the foregoing, we conclude that the Commissioner’s

finding that Huber was not disabled is not supported by substantial

5 We note that a non-physician state agency adjudicator had

previously found Huber capable of performing light work in the agency’s

initial administrative findings denying her application for benefits. (Tr.

97.) But it is well-settled that an ALJ may not rely on a state agency

adjudicator’s opinion in reaching a residual functional capacity

determination, as agency policy directs that such an assessment is not

entitled to any evidentiary weight at all. See House, 2014 WL 3866072,

at *8 n.7.

evidence. Accordingly, the Commissioner’s decision denying her

application for disability insurance benefits will be vacated and the case

will be remanded for further proceedings consistent with this opinion.

Dated: March 29, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge