BELL v. BERRYHILL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TIFFANY RACHELL BELL, )

)

Plaintiff, )

)

v. ) Civil Action No. 19-1099

)

ANDREW SAUL, )

Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 30th 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 supplemental security income benefits

under Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., finds that 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. Secretary

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)). 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 contends that the Administrative Law Judge (“ALJ”) erred in several

ways in finding that she was not disabled under the Social Security Act. Specifically, Plaintiff

argues that the ALJ erred in the analysis of her severe impairments at Step Two of the sequential

process and in giving insufficient weight to the opinions of her treating psychiatrist and therapist,

and in evaluating her subjective complaints, in formulating her residual functional capacity

(“RFC”) and the hypothetical question to the vocational expert (“VE”) at Steps Four and Five of

the sequential analysis. The Court finds no merit in Plaintiff’s contentions and finds that

substantial evidence supports the ALJ’s decision that Plaintiff is not disabled.

Plaintiff argues that the ALJ erred in not finding several of her impairments to

constitute severe impairments at Step Two, including her Hashimoto’s disease, degenerative disc

disorder, pituitary microadenoma, and white matter disease. However, the Step Two

determination as to whether a claimant is suffering from a severe impairment is a threshold

analysis requiring the showing of only one severe impairment. See Bradley v. Barnhart, 175

Fed. Appx. 87, 90 (7th Cir. 2006). In other words, as long as a claim is not denied at Step Two, it

is not generally necessary for the ALJ specifically to have found any additional alleged

impairment to be severe. See Salles v. Comm’r of Soc. Sec., 229 Fed. Appx. 140, 145 n.2 (3d

Cir. 2007); Lee v. Astrue, Civ. No. 06-5167, 2007 WL 1101281, at *3 n.5 (E.D. Pa. Apr. 12,

2007); Lyons v. Barnhart, Civ. No. 05-104, 2006 WL 1073076, at *3 (W.D. Pa. Mar. 27, 2006);

Gerald v. Berryhill, No. 3:17-CV-00575, 2018 WL 7364649, at *5 (M.D. Pa. Oct. 12, 2018),

report and recommendation adopted, No. CV 3:17-575, 2019 WL 719829 (M.D. Pa. Feb. 19,

2019). Since Plaintiff’s claim was not denied at Step Two, it does not matter whether the ALJ

correctly or incorrectly found Plaintiff’s alleged Hashimoto’s disease, degenerative disc disorder,

pituitary microadenoma, and white matter disease to be non-severe.

Of course, even if an impairment is non-severe, it may still affect a claimant’s

RFC. In assessing a claimant’s RFC, the ALJ “must consider limitations and restrictions

imposed by all of an individual’s impairments, even those that are not ‘severe.’” S.S.R. 96-8p,

1996 WL 374184 (S.S.A.), at *5 (July 2, 1996). See also 20 C.F.R. § 404.1545(a)(2). “While a

‘not severe’ impairment(s) standing alone may not significantly limit an individual’s ability to do

basic work activities, it may – when considered with limitations or restrictions due to other

impairments – be critical to the outcome of a claim.” S.S.R. 96-8p at *5. Accordingly, merely

because the ALJ did not find Plaintiff’s Hashimoto’s disease, degenerative disc disorder,

pituitary microadenoma, and white matter disease to be severe does not mean that these

impairments could not still have affected Plaintiff’s RFC.

Here, however, the RFC fixed by the ALJ was significantly detailed and

restrictive and accounted for Plaintiff’s brain injuries and other impairments. The issue is not

whether Plaintiff had been diagnosed with additional conditions, but what functional limitations

the conditions caused, and Plaintiff does not suggest what additional functional limitations

should have been included. See Walker v. Barnhart, 172 Fed. Appx. 423, 426 (3d Cir. 2006).

The closest she comes to doing so is by alleging that her non-severe impairments contributed to

her fatigue. (Doc. No. 15 at p. 17). However, she provides no evidentiary basis for this claim,

and in any event, the ALJ specifically addressed Plaintiff’s hypersomnolence in determining

Plaintiff’s RFC and the hypothetical question to the VE. (R. 124).

Plaintiff also argues that the ALJ gave insufficient weight to the April 18, 2018

opinions completed by Julie Garbutt, M.D., her treating psychiatrist, and her therapist, Penny

Croyle, M.S. (R. 1192-1201). As Plaintiff points out, when assessing a claimant’s application

for benefits, the opinions of the claimant’s treating physicians generally are 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); 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 or she 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 v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (internal citations omitted in

part).

Here, the ALJ satisfactorily discussed her basis for giving little weight to the

opinions of Dr. Garbutt and Ms. Croyle. For example, she noted that Dr. Garbutt and Ms. Croyle

had opined, not only as to Plaintiff’s mental limitations, but also as to her physical limitations,

despite the lack of support in the record for such findings and the fact that the findings were

outside the scope of their treatment of Plaintiff. The ALJ also pointed out that these health care

professionals opined that Plaintiff had suffered from three or more episodes of decompensation,

each lasting at least two weeks, which was wholly unsupported in the record. (R. 126). This

demonstrates a general lack of reliability in the opinions. Moreover, reading her decision as a

whole, see Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004), the ALJ discussed the evidence

inconsistent with these opinions, including the inconsistent findings in the medical imaging, and

the fact that Plaintiff’s neurological examinations were consistently unremarkable and that she

exhibited normal cognitive functioning. (R. 125-26). She also noted that there was no

documentation of the brain injury Plaintiff allegedly suffered when she was 11 and that was

central to her claims about her symptoms. (R. 125). Further, as Defendant points out, it is

questionable whether opinions as to how many days of work a claimant will miss, such as those

offered here, truly constitute medical opinions. See Rush v. Comm’r of Soc. Sec., No. CV 18-

10612, 2018 WL 6175374, at *3 (E.D. Mich. Oct. 5, 2018); Long v. Berryhill, No. 1:16-CV-485-

CHS, 2018 WL 1162621, at *5 (E.D. Tenn. Mar. 5, 2018); Stojic v. Comm'r of Soc. Sec., No.

1:14-CV-1133, 2015 WL 9238986, at *4 (W.D. Mich. Dec. 17, 2015) (stating that “predictions

of how often Plaintiff would likely be off task and miss work were conjecture, not a medical

opinion”).

Beyond that, the ALJ also relied on the contrary opinions of the state reviewing

agents issued on April 12, 2017. (R. 181-95). While an ALJ must consider the treating

relationship between a claimant and an opining doctor, when the medical opinion of a treating

source conflicts with that of a non-treating, or even a non-examining physician, “the ALJ may

choose whom to credit.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). See also Dula v.

Barnhart, 129 Fed. Appx. 715, 718-19 (3d Cir. 2005). In certain cases, the ALJ is justified in

giving 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). That is the case here, and substantial evidence supports the ALJ’s decision to weigh

the medical opinions as she did.

Plaintiff further argues that the ALJ gave insufficient consideration to her

testimony about the pain and limiting effects caused by her impairments. However, when an

ALJ has articulated reasons supporting a credibility determination, that determination is afforded

significant deference. See Horodenski v. Comm’r of Soc. Sec., 215 Fed. Appx. 183, 188-89 (3d

Cir. 2007); Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). Here, the Court finds that there

was sufficient evidence to support the ALJ’s findings regarding the veracity of Plaintiff’s

subjective complaints. As noted above, the ALJ discussed how Plaintiff’s testimony was not

supported by the inconsistent findings in the medical imaging, or by the fact that her neurological

examinations were consistently unremarkable and that she exhibited normal cognitive

functioning. (R. 125-26). The ALJ also noted the unique nature of Plaintiff’s claim – that a

traumatic brain injury not fully supported by the record began causing disabling symptoms 30

years later without any precipitating event. (R. 125). As the ALJ explained, there was nothing

improper about Plaintiff’s claim, but it did require a good deal of supporting explanation which

simply did not exist in the medical record.

All of this constitutes substantial evidence in support of the ALJ’s findings and as

to the formulation of Plaintiff’s RFC and hypothetical question, 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).

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

Judgment (document No. 14) is DENIED and that Defendant’s Motion for Summary Judgment

(document No. 16) is GRANTED.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

Plaintiff has also cited the possible application of Lucia v. S.E.C., 138 S.

Ct. 2044 (2018), and Cirko v. Comm’r of Soc. Sec., 948 F.3d 148 (3d Cir. 2020), as a

basis for remand. In Lucia, the United States Supreme Court found an ALJ of the

Securities and Exchange Commission assigned to hear enforcement actions to be an

“Officer of the United States,” subject to the Appointments Clause of the United States

Constitution. The Third Circuit Court of Appeals, in Cirko, held that claimants can raise

the challenge that ALJs of the Social Security Administration (“SSA”) were not properly

appointed under the Appointments Clause without having exhausted those claims before

the agency where the ALJs had, in fact, not been properly appointed at the time of the

claimant’s administrative proceedings. However, the Acting Commissioner reappointed

the SSA’s ALJs under her own authority on July16, 2018. See S.S.R. 19-1p, 2019 WL

1324866 (S.S.A.), at *2 (2019). The hearing in this case was not held until well after that

date, on September 21, 2018 (R. 137-80), and the ALJ’s decision was not issued until

October 17, 2018 (R. 199-28). Accordingly, ALJ Patricia Daum was properly appointed

during the entirety of the period during which she presided over the administrative

adjudication of this case. As such, even if the Court were inclined to permit Plaintiff to

raise an Appointments Clause argument at this late stage of the proceedings, such a claim

would be without merit.

Accordingly, for all of the reasons set forth herein, the Court finds that substantial

evidence supports the ALJ’s decision and therefore affirms.