HARTZOG v. BERRYHILL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PEGGY ANN BROCK HARTZOG, )

)

Plaintiff, )

)

v. ) Civil Action No. 18-484

)

NANCY A. BERRYHILL, )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 19th day of September, 2019, upon consideration of the parties’

cross-motions for summary judgment, the Court, upon review of the Commissioner of Social

Security’s final decision denying Plaintiff’s claim for disability insurance benefits under

Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., and denying Plaintiff’s claim

for supplemental security income benefits under Subchapter XVI of the Social Security Act, 42

U.S.C. § 1381 et seq., finds that the Commissioner’s findings are supported by substantial

evidence and, accordingly, affirms. See 42 U.S.C. § 405(g); Jesurum v. Secretary of U.S.

Department of Health & Human Services, 48 F.3d 114, 117 (3d Cir. 1995); Williams v. Sullivan,

970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied sub nom., 507 U.S. 924 (1993); Brown v.

Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). See also Berry v. Sullivan, 738 F. Supp. 942, 944

(W.D. Pa. 1990) (if supported by substantial evidence, the Commissioner’s decision must be

affirmed, as a federal court may neither reweigh the evidence, nor reverse, merely because it

would have decided the claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.

1981)).1

1 Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in several ways

in finding, after two remands, that she is not disabled under the Social Security Act. First, she

argues that the ALJ failed to analyze whether her migraine condition met or equaled a listing at

Step Three of the sequential analysis. She further asserts that the ALJ failed to properly account

for her migraine headaches in formulating her residual functional capacity (“RFC”). Finally, she

contends that the ALJ failed to give proper weight to the opinions of her treating health care

providers. The Court disagrees and instead finds that substantial evidence supports the ALJ’s

decision that Plaintiff is not disabled.

Plaintiff initially argued that the ALJ failed to consider whether her migraine

headaches met or equaled Listing 11.03, 20 C.F.R. Part 404, Subpart P, Appendix 1, pertaining

to non-convulsive epilepsy. She, correctly, identified Social Security Administration guidance

that previously established Listing 11.03 as the most appropriate listing for considering

migraines. However, as the parties now acknowledge, Listing 11.03 was rescinded effective

September 29, 2016, after this matter was last remanded but well before the ALJ issued his

decision on February 14, 2018. Plaintiff, accordingly, has withdrawn the portion of her

argument relating to Listing 11.03. However, she still contends that the ALJ failed to provide an

adequate analysis of whether her migraines met or equaled a listing, regardless of whether

Listing 11.03 was in effect. (Doc. No. 15 at 5). She also suggests that Listing 11.02, as it

pertains to dyscognitive seizures, is now the most analogous listing. (Id. at 6).

The Court notes that it did, in its March 31, 2016 Order, indicate that the ALJ, on

remand, should consider whether Plaintiff’s migraine headaches met or equaled Listing 11.03,

which, at the time, was still applicable. (R. 2082). Consistent with this directive, the ALJ

considered whether Plaintiff’s migraines met or equaled any applicable listings set forth at 11.00.

(R. 1990). In so doing, he incorporated his extensive discussion of the effects of Plaintiff’s

migraines later in his decision. (Id.). The Court finds this discussion to sufficiently address the

applicability of the listings under 11.00, including 11.02. Plaintiff does not attempt to

demonstrate how she does meet this, or any other, listing, and, indeed, the showing of a

dyscognitive seizure requires a showing of an alteration of consciousness, see Listing

11.00.H.1.b, of which there is no evidence here. It is important to remember that to meet a

listing, a claimant must “present medical findings equal in severity to all the criteria of a listed

impairment.” Degenaro-Huber v. Comm’r of Soc. Sec., 533 Fed. Appx. 73, 75 (3d Cir. 2013)

(quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in the original)). Substantial

evidence supports the ALJ’s finding that Plaintiff’s migraine condition did not.

Plaintiff next argues that the ALJ failed to properly account for her migraine

headaches in determining her RFC. This was the primary basis for this Court’s previous remand

in 2016, and while the ALJ’s 2018 decision is not completely without error on this point, the

ALJ did adequately explain the impact of Plaintiff’s migraines on her RFC.

The Court’s major concern last time was that the ALJ, in his December 23, 2014

decision, appeared to find that Plaintiff’s migraines had not occurred at a level sufficient to

impact her RFC for 12 consecutive months, based on unsupported findings, and the Court

therefore was unable to determine whether the ALJ had properly accounted for Plaintiff’s

migraines in the RFC. In his 2018 decision, though, the ALJ clearly indicated that Plaintiff’s

migraines impacted her RFC throughout the relevant timeframe. (R. 1994-96). He, in fact,

expressly explained how he incorporated Plaintiff’s migraines into his RFC analysis by limiting

her to sedentary work and restricting her from all exposure to work hazards, excessive noise, and

bright light. (R. 1996).

As Plaintiff points out, the ALJ still misstates the record in making his findings,

particularly the records of Christopher Rhody, D.O., Plaintiff’s treating general practitioner.

Indeed, as the Court pointed out in its prior remand of this matter, the ALJ incorrectly stated, in

his 2014 decision, that Dr. Rhody’s treatment notes reflected no mentions of headaches after July

2009 until June 2010. (R. 610, 2079). Unfortunately, this misstatement appears in the ALJ’s

most recent decision as well. (R. 1994). However, given the broader scope of his overall

discussion, this minor error no longer necessitates remand, particularly in light of the fact that the

headaches reported by Plaintiff to Dr. Rhody between July 2009 and June 2010 appear to refer to

sinus headaches, and not necessarily migraine headaches. (R. 551, 557).

As noted, the primary reason for the previous remand was for the ALJ to

reconsider his finding that Plaintiff’s migraines had never been sustained enough to impact her

RFC, given that it was based, in part, on the erroneous finding that Plaintiff had gone a year

without reporting any headaches to Dr. Rhody. Upon remand, the ALJ in his 2018 decision

clearly found that the migraines were generally present over the relevant time period. His

discussion in his most recent opinion instead focused on the fact that her reports of migraines

were sporadic and that they improved significantly with medication. (R. 1994-96). The issue

now, properly framed, is how frequent and severe Plaintiff’s migraines were over the course of

the relevant time period. Failure to acknowledge two reports of sinus headaches to Dr. Rhody in

2009 does not have a material impact on this analysis.

The record is now significantly more developed in regard to Plaintiff’s migraine

headaches. The ALJ had previously discussed the “significant improvement in the frequency

and severity of her headaches” noted by Tatyana P. Barsouk, M.D., in July of 2014. (R. 611,

1928). In the instant decision, he again discussed this finding, which is now supported by

additional notes from Dr. Barsouk from December 15, 2014, where she clarified that, as of July,

Plaintiff was experiencing “maybe 1 headache per week which was very mild and not associated

with photo, phonophobia, nausea, or vomiting.” (R. 1995, 2348). The ALJ went on to

acknowledge a later increase in the severity of Plaintiff’s headache symptoms, which happened

when Plaintiff herself altered her medication dosage. (R. 1995, 2341). He also considered the

fact that Plaintiff had cancelled an appointment for botox treatment (before ultimately

abandoning this treatment after one appointment), and that her symptoms again improved by

April 20, 2016. (R. 1995). This evidence is all relevant to the frequency and severity of

Plaintiff’s migraines in determining their impact on the RFC.

Plaintiff asserts that the analysis was insufficient because it did not address the

episodic nature of her migraines, nor did it account for other limitations allegedly caused by her

condition, such as being absent from work or off-task while at work. However, these limitations

are based primarily on Plaintiff’s own subjective complaints. While such claims were certainly

relevant, the ALJ was not under an obligation to simply accept what she said without question.

See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); Chandler v. Comm’r of Soc. Sec., 667 F.3d

356, 363 (3d Cir. 2011). The ALJ here clearly considered Plaintiff’s testimony, but found it to

be not fully supported by the record. His discussion was extensive and supported by substantial

evidence.

In sum, the Court finds that the RFC findings in the 2018 ALJ decision were

adequately discussed and supported by substantial evidence, especially in light of the United

States Supreme Court’s recent reminder that the threshold for meeting the substantial evidence

standard “is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). The ALJ here

focused on determining how often Plaintiff suffered from migraines and how serious they were

when she did. He determined them to be rather sporadic and of varying, but generally

improving, intensity, and accounted for them by placing certain limitations in the RFC, but not

all of the limitations claimed by Plaintiff in her testimony. The evidence supports this finding.

Whether it hypothetically could also have supported an RFC finding that did include the

restrictions that Plaintiff would miss a day of work per month and be off-task for a significant

amount of the day is irrelevant, as “[t]he presence of evidence in the record that supports a

contrary conclusion does not undermine the [ALJ’s] decision so long as the record provides

substantial support for that decision.” Malloy v. Comm’r of Soc. Sec., 306 Fed. Appx. 761, 764

(3d Cir. 2009).

The issue is not whether Plaintiff did, in fact, suffer from migraine headaches

during the relevant time, as it is clear that the parties and the ALJ agree that she did. The issue is

whether this condition “caused functional limitations that precluded [her] from engaging in any

substantial gainful activity.” Walker v. Barnhart, 172 Fed. Appx. 423, 426 (3d Cir. 2006). The

ALJ explained how he formulated Plaintiff’s RFC in regard to her migraines in significant detail,

and the Court finds his determination to be supported by substantial evidence.

Finally, Plaintiff argues that the ALJ gave insufficient weight to the June 10, 2010

opinion of Dr. Rhody (R. 530-32) and the May 20, 2014 opinion of Martin Violago, M.D., her

treating pain management specialist (R. 1925). Plaintiff correctly asserts that when assessing a

claimant’s application for benefits, the opinion of the claimant’s treating physicians generally is

to be afforded significant weight. See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001);

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). In fact, the regulations provide that for

claims, such as this one, filed before March 27, 2017, a treating physician’s opinion is to be

given “controlling weight” so long as the opinion is well-supported by medically acceptable

clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence

in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Fargnoli, 247 F.3d at 43; Plummer,

186 F.3d at 429. As a result, the ALJ may reject a treating physician’s opinion outright only on

the basis of contradictory medical evidence, and not on the basis of the ALJ’s own judgment or

speculation, although he may afford a treating physician’s opinion more or less weight

depending upon the extent to which supporting explanations are provided. See Plummer, 186

F.3d at 429. However, it is also important to remember that:

The ALJ -- not treating or examining physicians or State agency

consultants -- must make the ultimate disability and RFC

determinations. Although treating and examining physician

opinions often deserve more weight than the opinions of doctors

who review records, “[t]he law is clear . . . that the opinion of a

treating physician does not bind the ALJ on the issue of functional

capacity[.]” Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d

Cir.2011). State agent opinions merit significant consideration as

well.

Chandler, 667 F.3d at 361 (internal citations omitted in part).

Although Plaintiff characterizes the ALJ’s alleged error in weighing the medical

opinion evidence as one of law, this is not really the case. Plaintiff argues that the ALJ’s legal

mistake was not expressly considering each factor in 20 C.F.R. §§ 404.1527 and 416.927.

However, while an ALJ must, of course, consider the factors set forth in those regulations, the

ALJ need not expressly discuss each factor. See Palmer v. Colvin, No. 1:14-0311-TFM, 2015

WL 5286171, at *7 n.5 (W.D. Pa. Sept. 10, 2015). Indeed, the ALJ need not use any “particular

language or adhere to a precise format” in assessing opinion evidence. Jones v. Barnhart, 364

F.3d 501, 505 (3d Cir. 2004). Therefore, the fact that the ALJ did not explain how each factor in

Sections 404.1527 and 416.927 applied to his analysis is not a mistake of law.

In any event, the ALJ did, in fact, consider the proper factors in determining the

weight to apply to the medical opinions in this case. Plaintiff argues that the ALJ considered the

opinions of Drs. Rhody and Violago “in isolation from each other,” contrary to his duty to

consider the consistency of medical opinions with the record as a whole, including other medical

opinions, pursuant to 20 C.F.R. §§ 404.1527(c)(4) and 416.927(c)(4). However, the ALJ

specifically did consider these two opinions together and even discussed the fact that the two

doctors worked together at Canonsburg Community Health Center. (R. 2001, 2003-04). He also

clearly indicated that each of these two physicians had a long-standing treating relationship with

Plaintiff. (R. 2000-02). The ALJ, as Plaintiff acknowledges, considered the consistency of the

opinions with the other evidence of record and the supportability of the opinions, including the

fact that Drs. Rhody and Violago “merely check-off or otherwise indicate functional limitations

in their reports without citing to any treatment records or evidence that supports their

assessments.” (R. 2004). While, as Plaintiff points out, “check-box” opinions are not improper

per se, the Court of Appeals for the Third Circuit has stated 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

v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993). The ALJ could and did consider this aspect of

the opinions.

The issue really, then, is not whether the ALJ properly followed the law (which he

did), but whether his findings regarding the weight afforded to the medical opinions are

supported by substantial evidence. As noted above, the ALJ discussed the record evidence and

how it was inconsistent with the opinions of Drs. Rhody and Violago, and the Court finds this

discussion to be sufficient and supported by substantial evidence. The Court further notes that,

although Plaintiff alleges that the ALJ relied on the fact that she mowed her lawn to discount

these opinions, it is clear from the context that the ALJ’s statement that Plaintiff is able to

perform daily activities is a reference to medical records documenting this finding. (R. 1928,

2439, 2441, 2444, 2447, 2449).

Plaintiff also takes issue with the fact that the ALJ gave more weight to several

other opinions in the record, specifically those of Miles Lance Weaver, M.D. (R. 262-63), with

whom Plaintiff followed up after gastric bypass surgery, and her treating rheumatologist David

E. Seaman, M.D. (R. 351-53), as well as that of state agency physician Abu N. Ali, M.D. (R.

520-24). While conceding that the first two doctors had a treating relationship with her, Plaintiff

argues that their opinions – prepared on July 1, 2008, and August 21, 2008, respectively –

predate the opinions of Drs. Rhody and Violago and that they are narrowly tailored to the

specific condition these doctors were treating. Although Plaintiff’s contentions are correct, these

factors did not stop the ALJ from giving them the weight they were due. First, the ALJ

acknowledged the time span since these opinions were rendered and considered more current

evidence in assigning them weight. Further, neither Dr. Weaver nor Dr. Seaman purported to

opine on anything outside of the scope of their treatment with Plaintiff. There is also no

indication that the ALJ relied on these opinions to discount Dr Rhody’s and Dr. Violagao’s

opinions, which pertained to Plaintiff’s back and neck pain. Indeed, all of these treating

physicians were really addressing different impairments, and none offered an opinion relevant to

the limitations created by Plaintiff’s migraine headaches.

As for the state reviewing agent, the law is clear that although “the opinions of a

doctor who has never examined a patient have less probative force as a general matter, than they

would have had if the doctor had treated or examined him,” Morales v. Apfel, 225 F.3d 310, 320

(3d Cir. 2000) (internal quotations omitted), where “the opinion of a treating physician conflicts

with that of a non-treating, non-examining physician, the ALJ may choose whom to credit.” Id.

at 317. See also Dula v. Barnhart, 129 Fed. Appx. 715, 718-19 (3d Cir. 2005). The ALJ, of

course, “‘cannot reject evidence for no reason or for the wrong reason,’” Morales, 225 F.3d at

317 (quoting Plummer, 186 F.3d at 429), and can only give the opinion of a non-treating, non-

examining physician weight insofar as it is supported by evidence in the case record, considering

such factors as the supportability of the opinion in the evidence, the consistency of the opinion

with the record as a whole, including other medical opinions, and any explanation provided for

the opinion. See Social Security Ruling 96-6p, 1996 WL 374180 (S.S.A.), at *2 (1996). In

certain cases, it would not be unwarranted to give more weight to the non-examining

professional’s opinion. See Salerno v. Comm’r of Soc. Sec., 152 Fed. Appx. 208 (3d Cir. 2005)

(affirming an ALJ’s decision to credit the opinion of the non-examining state agency reviewing

psychologist because his opinion was more supported by the record than the opinions of the

treating physician and the consultative examiner).

Here, the ALJ adequately discussed the record and its consistency with the

opinion of the state reviewing agent. Plaintiff objects, however, due to the fact that Dr. Ali’s

Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary

Judgment (document No. 11) is DENIED and that Defendant’s Motion for Summary Judgment

(document No. 13) is GRANTED.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

opinion, completed on January 2, 2009, was rendered without access to later record evidence,

including Dr. Rhody’s and Dr. Violago’s opinions. It is not unexpected for the record to contain

evidence post-dating the state reviewing agent’s opinion. Generally speaking, “there is always a

time lapse between the consultant’s report and the ALJ hearing and decision.” Chandler, 667

F.3d at 361. The issue here, of course, is that, given the age of the case, all of the medical

opinions are long in the tooth. However, the Court notes that the ALJ did not simply adopt Dr.

Ali’s opinion, or any other, but rather considered all of them in formulating the RFC. Indeed, the

RFC here was far more restrictive than the one proposed by Dr. Ali. (R. 1991, 2004). Moreover,

the ALJ acknowledged that the reviewing agent did not have access to the later medical records.

The ALJ did, though, have access to this later evidence to which none of the opining medical

professionals did, and clearly relied upon and discussed that evidence in making his findings.

This case has certainly not always gone smoothly. However, the ALJ’s instant

opinion is thorough and well-supported, and Court therefore affirms. While the Court

acknowledges Plaintiff’s suggestion that oral argument may assist the Court in this matter, the

Court finds such argument to be unnecessary in light of the extensive record in this case and the

parties’ comprehensive and well-crafted briefs.