JOHNS v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHRISTOPHER R. JOHNS, )

)

Plaintiff, )

)

vs. ) Civil No. 20-107

)

ANDREW M. SAUL, )

Commissioner of Social Security, )

)

Defendant.

ORDER

AND NOW, this 26th day of March, 2021, 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 Title II

of the Social Security Act, 42 U.S.C. § 401, et seq., finds the Commissioner’s findings are

supported by substantial evidence and, accordingly, affirms. See 42 U.S.C. § 405(g); Biestek v.

Berryhill, 139 S. Ct. 1148, 1153—54 (2019); Jesurum v. Sec’y of U.S. Dep’t of Health & Human

Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Brown v. Bowen, 845 F.2d 1211, 1213 (3d

Cir.1988)); Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (reviewing the

Commissioner’s final determination, the Court “may neither reweigh the evidence, nor may we

reverse the Secretary merely because we would have decided the claim differently.”) (citing

Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981)).1

1 Plaintiff argues remand is appropriate because the Administrative Law Judge

(“ALJ”) erred in two respects, first by inappropriately affording “great weight” to one of the

medical opinions in the record, and, second, by failing to address whether Plaintiff’s cervical

condition constituted a listed impairment. The Court disagrees and finds that substantial

evidence supports the ALJ’s findings and ultimate determination of non-disability.

Plaintiff’s first argument is that the ALJ should not have afforded the medical report

produced by Dr. Tad Gorske “great weight.” (Doc. No. 17, pg. 7). ALJs are obligated to

consider all the medical evidence in a claimant’s record, Beatty v. Barnhart, 112 F. App’x 163,

164 (3d Cir. 2004) (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)), and they assign

weight to “the various medical opinions in the record” based on a number of factors. Cooper v.

Comm’r of Soc. Sec., 563 F. App’x 904, 913 (3d Cir. 2014) (citing 20 C.F.R. § 416.927)). When

an ALJ’s determination of a particular medical opinion’s weight is supported by substantial

evidence, reviewing courts do not disturb it. See Dority v. Comm’r Soc. Sec., 621 F. App’x 728,

731 (3d Cir. 2015) (finding the ALJ’s decision and the “weight the ALJ ascribed” to medical

testimony “supported by substantial evidence”).

Dr. Gorske saw the Plaintiff on November 30, 2012. (R. 747). At that time, Dr. Gorske

performed a neuropsychological evaluation at the request of Dr. Betty Liu. (R. 747). At his

appointment with Dr. Gorske, Plaintiff reported significant symptoms, including headaches

reaching a 10/10 severity; sleep interruptions caused by head and neck pain; general neck and

elbow pain; changes in mood, such as irritability; slurred speech (as reported by friends and

family); memory problems; double vision; photo or phonophobia; episodes of depression; and

dizziness. (R. 747—49). Dr. Gorske recorded Plaintiff’s complaints and his own observation

that Plaintiff was distressed and frustrated. He also noted Plaintiff was vague and a poor

historian, though pleasant and cooperative. (R. 749—50). Dr. Gorske further noted bilateral

tremors in Plaintiff’s hands, three instances of spontaneous jerking, and several impairments of

attention and ability ranging from mild to severe. (R. 750—51) (taking note of Plaintiff’s

borderline verbal reasoning skills, a moderate impairment in immediate sensory attention, a

severe impairment in speed of attention and visual motor tracking, a moderate impairment in

divided attention and psychomotor speed, a moderate impairment in learning slope, a severe

impairment in ability to recognize words, a severe impairment on tests designed to assess mental

flexibility and set shifting, and a mild impairment for executive functioning skills).

In addition to these initial findings, Dr. Gorske documented what he referred to as a

“confounding factor,” (R. 751), that being Plaintiff’s failure to pass several “formal and

embedded symptom validity tests (SVT)” during the evaluation. (R. 751). Plaintiff’s

performance in that regard was strikingly poor—on a “forced choice embedded measure, 100%

of sample respondents scored better” than the Plaintiff did. (R. 751). Because of the

“confounding factor,” Dr. Gorske added a warning to his evaluation: “no valid interpretations

can be made about Mr. Johns neuropsychological test results and I would not recommend using

this evaluation for legal, financial, or compensation decision making.” (R. 751).

Plaintiff now argues that warning should have been heeded by the ALJ. How, Plaintiff

asks, was it appropriate for the ALJ to afford great weight to Dr. Gorske’s opinion in

proceedings before the Commissioner when Dr. Gorske warned against his report’s use in legal,

financial, or compensation decision making? However, in posing that question, Plaintiff

misapprehends the nature of the ALJ’s consideration of Dr. Gorske’s evaluation. Far from

ignoring Dr. Gorske’s warning, the ALJ emphasized it to demonstrate a pattern of symptom

exaggeration in Plaintiff’s medical records. The ALJ found Dr. Gorske’s concerns in this regard

to be consistent with the concerns Drs. Abraham and Talbott expressed in their medical opinions.

(R. 26). Like Dr. Gorske, Dr. Abraham—who evaluated Plaintiff in August 2013 and March

2016—questioned whether Plaintiff was exaggerating his symptoms, finding Plaintiff’s “self-

portrayal of functional impairment is more than I would normally predict.” (R. 494, 499). Dr.

Talbott, evaluating Plaintiff for his worker’s compensation claim in 2013, similarly noted the

“potential for symptom magnification.” (R. 799). With that in mind, the ALJ assigned “great

weight” to Dr. Gorske’s assessment, (R. 26) which was appropriate, considering its consistency

with Plaintiff’s “record as a whole.” 20 C.F.R. § 404.1527(c)(4). Thus, the Court discerns no

error in the ALJ’s decision to afford Dr. Gorske’s opinion great weight, and will not, as Plaintiff

requests, remand for the ALJ to produce a decision without considering it.

Plaintiff’s second argument is that the ALJ failed to consider, “at any point in Finding of

Fact 4,” whether Plaintiff’s cervical condition met or equaled Listing 1.04, Disorders of the

Spine, 20 C.F.R. § 404, Subpart P, Appendix 1. At step three of the “five-step evaluation

process to determine whether an individual is disabled,” the ALJ considers whether “evidence

establishes that the claimant suffers from a listed impairment.” Jones v. Barnhart, 364 F.3d 501,

503 (3d Cir. 2004). The ALJ “identif[ies] the applicable listings to consider,” but the claimant

carries the burden of proof to show the “impairment matches a listing or is equal in severity to a

listed impairment.” Edwards v. Berryhill, No. CV 16-475, 2017 WL 1344436, at *2 (W.D. Pa.

Apr. 12, 2017). See Blose v. Colvin, No. CIV.A. 14-016E, 2014 WL 4924905, at *2 (W.D. Pa.

Sept. 30, 2014) (explaining claimants’ burden to “present medical findings equal in severity to

all the criteria for the one most similar listed impairment.”). In assessing relevant listings and

claimants’ evidence at step three, ALJs must provide more than a “bare conclusory statement”

that a claimant’s impairment is not a good match for a listing or equivalent thereto. Jones, 364

F.3d at 504 (citing Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119–20 (3d Cir. 2000)).

However, the emphasis is on substance rather than form; therefore, ALJs need not follow a

“particular format” or use “particular language” to satisfy the requirement of Burnett. Id. at

504—05. Rather, an ALJ’s opinion must provide a reviewing court with a “record and

explanation of findings” that are adequate to “permit meaningful review.” Id. at 505.

Contrary to Plaintiff’s assertion that the Court “is unable to engage in any meaningful

review of whether the ALJ adequately considered Plaintiff’s claim at Step Three under Listing

1.04” (Doc. No. 17, pg. 9), there is sufficient discussion surrounding Listing 1.04 in the ALJ’s

decision to permit meaningful review. In his opinion, the ALJ found Plaintiff had thirteen severe

impairments: obesity, post-traumatic headaches, cervical degenerative disc disease, myofascial

pain syndrome, post-concussive syndrome, bipolar disorder, cervical vertebral fusion syndrome,

Kippel-Feil syndrome, manic depressive disorder, anxiety, panic attacks, mild neurocognitive

disorder, and an adjustment disorder. (R. 17). As part of the ALJ’s severe medical impairment

findings, the ALJ highlighted the lack of “evidence of significant symptoms, limitations or

treatment for a cervical strain.” (R. 17). The ALJ acknowledged that Plaintiff had undergone a

discectomy and fusion in 2012 (R. 17), and that imaging had indicated the possibility of C6 root

impingement and stenosis. (R. 18). However, the ALJ further noted that “physical and

neurological findings” related thereto had been “unremarkable.” (R. 18). In support of that

finding, the ALJ pointed to evidence in the record concerning Plaintiff’s cervical spine before

and after fusion. (R. 18 (citing exhibits)). Prior to fusion, the evidence indicated possible

impingement of Plaintiff’s C6 nerve root, but no spinal cord abnormality. (Exhibit 20F, R. 687,

Radiology Report, dated 11/29/2011, from Centre Commons MRI, cited at R. 18). The fusion

itself appeared to be largely successful. (Exhibit 32F, R. 741, Radiology Report, dated

10/09/2012, from UPMC, cited at R. 18). Five months after the procedure, Plaintiff visited the

Emergency Department at UPMC Presbyterian Hospital, complaining of headache, neck pain,

fatigue, and sleeplessness. (Exhibit 33F, R. 742—43, Emergency Department Records, dated

10/27/2012, from UPMC Presbyterian Hospital, cited at R. 18). He was determined to be

suffering from tension headache and postoperative neck pain, but with minimal treatment “felt

very well and was prepared for discharge.” (R. 742—43). That and other evidence in the record

support the conclusion that, while fusion did not eliminate Plaintiff’s neck pain and headaches,

its results were favorable and Plaintiff’s motor strength remained intact. (R. 790). The ALJ

indicated he considered this evidence. (R. 17—18).

After going through the medical records related to Plaintiff’s cervical condition, the ALJ

considered whether Plaintiff suffered from a listed impairment. The ALJ specifically considered

Listings 1.04, 11.02, 12.02, 12.04, and 12.06. (R. 18). Considering those listings, the ALJ found

that despite Plaintiff’s subjective complaints of pain and other symptoms, the “physical

examinations” in the record indicated “full passive and active range of motion, normal strength,

sensation and reflexes.” (R. 18). Without “objective signs of neurologic deficit,” (R. 18), the

ALJ determined Plaintiff neither suffered from Listing 1.04, Disorders of the Spine, nor any

other listed impairment. That conclusion is supported by substantial evidence and is appropriate,

considering the requirements for Listing 1.04. For a claimant to meet or equal the listing at 1.04,

they must suffer from a disorder of the spine that compromises the nerve root or spinal cord, and

there must be (A) “[e]vidence of nerve root compression characterized by neuro-anatomic

distribution of pain, limitation of motion of the spine, [and] motor loss (atrophy with associated

muscle weakness or muscle weakness) accompanied by sensory or reflex loss,” (B) confirmed

spinal arachnoiditis, or (C) confirmed lumbar spinal stenosis. Listing 1.04, 20 C.F.R. § 404,

Subpart P, App. 1 (Plaintiff does not point to any evidence in the record of spinal arachnoiditis

(1.04B), or lumbar spinal stenosis (1.04C)). Substantial evidence in the record supports the

ALJ’s determination that Plaintiff lacked motor loss or atrophy with muscle weakness for Listing

1.04A. Dr. Abraham, whose opinion the ALJ afforded partial weight, found no atrophy. (R.

494, 498). Dr. Talbott also found Plaintiff’s strength normal. (R. 799 (“[H]e is a well

developed, muscular individual who has absolutely no weakness in any representative muscle

group in any extremity.”). The ALJ afforded great weight, in part, to Dr. Sabeh’s opinion

wherein Dr. Sabeh observed Plaintiff was able to ascend and descend the exam table without

assistance and rise from his chair without difficulty. (R. 474). Dr. Sabeh also noted a lack of

muscle atrophy in extremities. (R. 474).

Considering these medical opinions, the ALJ’s determination that Plaintiff did “not have

objective findings of the necessary severity to meet or medically equal” Listing 1.04 (R. 18), is

one that a “reasonable mind might accept,” therefore, it is supported by substantial evidence.

Varano v. Colvin, No. 3:14-CV-001467-GBC, 2015 WL 5923615, at *13 (M.D. Pa. Oct. 9,

2015). While the ALJ could have included or repeated all of his findings concerning Plaintiff’s

cervical condition under the fourth heading of his opinion where he specifically addressed listed

impairments, it is clear from the record as a whole that he considered Plaintiff’s cervical

condition in light of Listing 1.04. Cooper, 563 F. App’x at 911 (finding the ALJ’s listings

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

(Doc. No. 16) is DENIED and Defendant’s Motion for Summary Judgment (Doc. No. 18) is

GRANTED.

/s Alan N. Bloch

United States District Judge

ecf: Counsel of Record

discussion sparse but sufficient to permit meaningful review). Further, the ALJ explained why

he afforded less weight to Dr. Liu’s opinion, which, contrary to the other medical opinions in the

record, indicated some weakness. (R. 23—24). Plaintiff has not, at this time, pointed to

evidence in the record demonstrating that his cervical condition meets the specific requirements

for Listing 1.04.

The Court further notes that though Plaintiff identified Listing 11.02 as another listing the

ALJ failed to address at heading “II” of the brief accompanying his motion (Doc. No. 17, pg. 8),

the substance of Plaintiff’s listings argument is limited to whether the ALJ failed to adequately

address Listing 1.04. “In the absence of any substantive or meaningful analysis” regarding the

ALJ’s consideration of Listing 11.02, the Court will not address such an issue. Salyards ex rel.

Pittinger v. Astrue, No. CIV.A. 11-151, 2013 WL 53728, at *2 (W.D. Pa. Jan. 3, 2013). The

Court discerns no error in the ALJ’s determination Plaintiff did not suffer from listed

impairment. Accordingly, the Court finds the ALJ’s ultimate determination of non-disability is

unmarred by error and supported by substantial evidence. The Court thus grants Defendant’s

Motion for Summary Judgment.