# BELL v. BERRYHILL

> District Court, W.D. Pennsylvania · March 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10416443

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 30, 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/10416443

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416443. Public record. Not legal advice.