# JOHNS v. SAUL

> District Court, W.D. Pennsylvania · March 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10416420

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10416420

## How later opinions describe it (automated extraction)

- finding the ALJ’s decision and the “weight the ALJ ascribed” to medical testimony “supported by substantial evidence”
- finding the ALJ’s listings Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. No. 16

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416420. Public record. Not legal advice.