BANCHIERE v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MATTHEW GREGORY BANCHIERE, )

)

Plaintiff, )

)

vs. ) Civil No. 20-1512

)

ANDREW SAUL, )

)

Commissioner of Social Security, )

Defendant.

ORDER

AND NOW, this 25th day of January 2022, the Court having considered the parties’

cross-motions seeking summary judgment will grant Defendant’s motion except as to costs.1

The agency’s final decision denying Plaintiff’s application for disability insurance benefits under

Title II of the Social Security Act (“Act”), 42 U.S.C. § 401 et seq., is supported by substantial

evidence, therefore, the Court will order it affirmed. See 42 U.S.C. § 405(g); Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).2

1 The Commissioner’s requested relief includes costs being taxed against Plaintiff. (Doc.

No. 14, pg. 2). In the absence of any argument supporting that request, the Court will deny the

Commissioner’s motion as to costs. See Pa. Dep’t of Pub. Welfare v. U.S. Dep’t of Health &

Hum. Servs., 101 F.3d 939, 945 (3d Cir. 1996).

2 In this matter, the Administrative Law Judge (“ALJ”) found that despite Plaintiff’s severe

mental impairments, he could work at all exertional levels with appropriate limitations, e.g.,

limitation to simple and routine tasks. (R. 19). Because a substantial number of jobs in the

national economy were available to someone with Plaintiff’s abilities and vocational

characteristics, the ALJ found Plaintiff not disabled. (R. 23). Plaintiff challenges that decision

before the Court and argues that it is not supported by substantial evidence. Specifically, he

faults the ALJ’s listed-impairment(s) finding and the ALJ’s consideration of the vocational

expert’s (“VE”) testimony. The Court has considered those arguments but finds no error or

insufficiency of evidence in the decision that would warrant remand.

The Court first addresses Plaintiff’s argument that the ALJ’s listed-impairment(s) finding

is not supported by substantial evidence. Substantial evidence demands only that the ALJ’s

decision is supported by “more than a mere scintilla” of evidence, that is, “such relevant

evidence as a reasonable mind might accept as adequate.” Fargnoli v. Massanari, 247 F.3d 34,

38 (3d Cir. 2001) (citation omitted). This standard, while deferential, does not permit

“conclusory” decisions. Id. at 40 n.4. To facilitate “meaningful judicial review,” ALJs must

“fully develop the record and explain [their] findings.” Id. Accordingly, when the Court reviews

a listed-impairment(s) finding, it looks for an adequate explanation that supports the finding with

evidence that would satisfy a reasonable mind.

The listed-impairment(s) inquiry is the third question ALJs consider in the “five-step

sequential evaluation process” they use to assess disability. 20 C.F.R. § 404.1520(a)(1). At step

three, ALJs compare a claimant’s medically determinable impairments to a list of presumptively

severe impairments in the regulations. Id. § 404.1520(a)(4)(iii); Sullivan v. Zebley, 493 U.S.

521, 525 (1990). “If the claimant’s impairment matches or is ‘equal’ to one of the listed

impairments, he qualifies for benefits without further inquiry.” Sullivan, 493 U.S. at 525

(citation omitted). To match one of the listed impairments, the claimant must show that his

listing “meet[s] all of the specified medical criteria” for the listing. Id. at 530. “An impairment

that manifests only some of those criteria, no matter how severely, does not qualify.” Id.

In this matter, the ALJ considered the criteria for Listing 12.03, “Schizophrenia spectrum

and other psychotic disorders” at 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.03. To meet Listing

12.03, a claimant must satisfy the paragraph A and B criteria or the paragraph A and C criteria.

Id. The paragraph A criteria are satisfied by delusions or hallucinations. Id. There is no

question in this case that the paragraph A criteria were satisfied, therefore the Court focuses its

review on the ALJ’s decision as to the paragraph B and paragraph C criteria.

The paragraph B criteria are satisfied when the claimant suffers one extreme or two

marked limitations in four areas of mental functioning: “[u]nderstand, remember, or apply

information;” “[i]nteract with others;” “[c]oncentrate, persist, or maintain pace;” and “[a]dapt or

manage oneself.” Id. The paragraph C criteria are satisfied when the claimant’s disorder is

“serious and persistent,” there is evidence of “[m]edical treatment, mental health therapy,

psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the

symptoms and signs of [the] mental disorder;” and there is “[m]arginal adjustment, that is, [the

claimant] ha[s] minimal capacity to adapt to changes in [his/her] environment or to demands that

are not already part of [his/her] daily life.” Id. Considering Plaintiff’s record, the ALJ found

Plaintiff suffered only moderate limitations of mental functioning and, therefore, did not meet

the paragraph B criteria. (R. 18). He further found the record did not support a finding of

marginal adjustment for the paragraph C criteria. (R. 18—19).

Concerning the paragraph B criteria, Plaintiff argues that the ALJ’s analysis lacks

appropriate consideration of evidence supporting more severe limitations and, further, argues the

ALJ should have found Plaintiff was markedly limited in two areas of mental functioning

(concentrating, persisting, or maintaining pace, and adapting or managing oneself). Plaintiff

alleges that the ALJ found only moderate limitations because he selectively cited evidence that

supported his conclusion. However, having reviewed the record and the ALJ’s paragraph-B

finding, the Court is satisfied that it is supported by substantial evidence. As an initial matter,

the ALJ supported the finding of only moderate limitations with references to not insubstantial

evidence. (R. 18). For instance, the ALJ relied on Plaintiff’s ability to manage his own finances

and personal care, as well as his intact memory and adequate concentration upon examination to

justify the finding. (R. 18).

Plaintiff argues the evidence that the ALJ relied on was selectively cited to the exclusion

of “contrasting evidence” like indicia in the record of his impulsive spending. (Doc. No. 13, pg.

12). While Plaintiff is correct in his articulation of the rule that ALJs must acknowledge the

relevant evidence they reject, see Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981), ALJs are

not required to “discuss every piece of evidence in the record.” Gamret v. Colvin, 994 F. Supp.

2d 695, 698 (W.D. Pa. 2014); Fargnoli, 247 F.3d at 42 (explaining that the demands on ALJs are

not so tedious as to require reference to “every relevant treatment note”). To that end, the

evidence Plaintiff argues was wrongly omitted was not necessarily rejected in such a way as

required specific acknowledgement. Plaintiff argues the ALJ should have acknowledged

evidence that Plaintiff’s father supported him financially (R. 35) and that one of his medications

had adversely affected his spending (R. 196), but that evidence was not clearly at odds with

Plaintiff’s self-reported ability to manage funds (R. 192) such that the ALJ had to reject the

former to accept the latter. The same is true of the ALJ’s consideration of Plaintiff’s function

report. (See Doc. No. 13, pg. 13 (alleging the ALJ “cherry pick[ed]” favorable evidence)).

While Plaintiff argues the ALJ overlooked parts of that record, e.g., that he only cooked weekly

(R. 191), the ALJ did not need to reject that evidence to cite Plaintiff’s ability to prepare meals in

support of his moderate limitations finding (R. 18). Further, though a consultative examiner

(“CE”) indicated Plaintiff “would benefit from assistance in managing funds” (R. 508), the ALJ

explained later in the decision that he found the CE’s opinion to have little persuasiveness due to

its internal inconsistencies. (R. 21).

Plaintiff also critiques the ALJ’s paragraph B criteria finding because the ALJ relied on a

mental status examination from 2014 without citing later medical records. In the section of the

decision where the ALJ specifically addressed listed impairments, he cited the 2014 record to

support his finding that Plaintiff’s memory was intact and he had adequate attention and

concentration. (R. 18). And while the ALJ did not there immediately address further medical

records, the ALJ thoroughly reviewed Plaintiff’s medical records from 2013, 2014, 2016, 2017,

and 2018 in the next section of the decision where he considered the evidence toward Plaintiff’s

residual functional capacity (“RFC”) determination. (R. 20—21). Those additional records

tended to show similar findings as the 2014 record. For instance, in July 2017 Plaintiff was

noted to have a “coherent and goal directed” thought process, “intact and age appropriate”

attention and concentration, and “intact and age appropriate” memory skills. (R. 20, 401).

Reading the ALJ’s decision “as a whole,” Cosme v. Comm’r Soc. Sec., 845 Fed. Appx. 128, 132

(3d Cir. 2021) (citing Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004)), the Court is thus

satisfied that there is no deficiency in the ALJ’s consideration of Plaintiff’s medical records for

purposes of the paragraph B criteria. Additionally, the ALJ’s review of the objective medical

evidence demonstrates the ALJ’s cognizance of evidence that could have justified greater

limitations, like Plaintiff’s increased auditory hallucinations during periods of stress. (R. 20).

But where the ALJ clearly reviewed that evidence, this Court may not reweigh it. Krinjeck v.

Saul, —F. Supp. 3d—, No. 3:20-CV-63, 2021 WL 2942237, at *1 (W.D. Pa. July 13, 2021)

(citing Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011)).

Plaintiff’s final criticism of the ALJ’s paragraph B criteria determination is that the ALJ

should have, but failed to, address his “bizarre” hearing testimony. (Doc. No. 13, pg. 12).

Plaintiff argues that the ALJ should have addressed the manner of his testimony at R. 42—43,

46—47, 47—48, 55, and 59—60. He asserts this testimony evidenced his “disorganized

thinking” and supported a finding of marked limitation in concentrating/persisting/maintaining

pace and adapting/managing oneself. (Doc. No. 13, pg. 14). As a general matter, the Court

notes that the selected testimony is not obviously bizarre. Plaintiff’s response to a question about

how he had experienced auditory hallucinations might be described as rambling, but not

necessarily so nonresponsive as to be obviously bizarre. (See e.g., R. 46—47 (explaining his

auditory hallucinations as perceiving everything as being about him and hearing voices in an

outer membrane)). Importantly, reviewing courts may not fault ALJs for failing to use any

particular language to describe evidence. See Jones, 364 F.3d at 505 (explaining there is no

required language or format for ALJs’ analyses). Not only that, but the ALJ’s failure to label

Plaintiff’s testimony as “bizarre” in this matter might be better characterized as the ALJ’s

exercise of appropriate restraint in taking Plaintiff’s testimony at face value instead of forming a

lay medical opinion as to what Plaintiff’s testimony indicated about the organization of his

thinking. More important than whether the ALJ should or should not have recognized Plaintiff’s

testimony as evidence of the quality of his thought, is whether the ALJ considered the content of

Plaintiff’s testimony. In this regard, there is no question the ALJ’s analysis is sufficient: in the

decision, the ALJ specifically noted Plaintiff’s testimony that he had struggled with poor

memory, paranoia, and sporadic auditory hallucinations. (R. 20). Accordingly, the Court finds

no error or oversight in the ALJ’s finding that Plaintiff’s impairments did not match the

paragraph B criteria for Listing 12.03.

Plaintiff’s critique of the ALJ’s paragraph C criteria finding for Listing 12.03 is very

similar to his argument concerning the paragraph B criteria. Plaintiff argues that the ALJ did not

adequately consider his participation in mental health and rehabilitation programming and

further argues that the ALJ decided the evidence did not show marginal adjustment without

addressing his delusions, disorganized testimony, or hallucinations. (Doc. No. 13, pg. 15).

Based on those failings, Plaintiff asserts that the ALJ’s decision as to the paragraph C criteria is

too brief to permit meaningful judicial review. Considering the paragraph C criteria, the ALJ

explained that the evidence failed to demonstrate the criteria because Plaintiff “reported he

prepares meals, shops in stores, socializes with others, drives a car, gets along with authority

figures, and manages his own finances.” (R. 18—19). Because the ALJ’s decision was clearly

premised on the marginal-adjustment component of paragraph C, the Court need not address

Plaintiff’s argument that the ALJ failed to adequately consider Plaintiff’s participation in mental

health and rehabilitation programming.

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

(Doc. No. 12) is DENIED and Defendant’s Motion for Summary Judgment (Doc. No. 14) is

GRANTED in part and DENIED in part, as specified above.

s/ Alan N. Bloch

United States District Judge

ecf: Counsel of Record

Considering Plaintiff’s argument that the ALJ’s marginal-adjustment finding is too brief

to permit meaningful review, the Court finds no such shortcoming. When the Court evaluates an

ALJ’s decision for substantial evidence, it looks at the decision “as a whole,” not piece by piece.

See Cosme, 845 Fed. Appx. at 132. Though Plaintiff contends that the ALJ failed to consider his

delusions, disorganized testimony, and hallucinations toward marginal adjustment, the ALJ

considered that evidence throughout the decision. For instance, assessing Plaintiff’s RFC, the

ALJ considered that Plaintiff reported to the CE that his auditory hallucinations increase when he

experiences stress. (R. 20). Despite this and other evidence, the ALJ found significant

evidence—especially Plaintiff’s self-reported activities—that did not match the marginal-

adjustment criterion for paragraph C of Listing 12.03. That finding being supported by

substantial evidence and not undermined by any failure to address some other obviously

probative evidence, the Court will not disturb it.

Plaintiff has raised one other challenge to the ALJ’s decision finding him not disabled.

He argues that the ALJ ignored the VE’s testimony that employers would tolerate no more than

one absence/month and no more than 5% off-task time. Plaintiff further argues that the ALJ

should have explained how an individual who, among other things, tries to intercept telepathic

thoughts and hallucinates could stay on task for 95% of the workday and avoid taking multiple

days off during periods of exacerbated symptoms. This argument is best “understood as [a]

challenge[] to the RFC assessment itself,” because while it is presented as a challenge to the

ALJ’s reliance on the VE’s testimony, it is really an argument that the ALJ should have included

off-task time and absences limitations in the RFC. Rutherford v. Barnhart, 399 F.3d 546, 554

n.8 (3d Cir. 2005). Accordingly, the effective question presented is whether substantial evidence

supports the ALJ’s RFC determination. The Court is satisfied the RFC is so supported.

Although Plaintiff argues that his telepathic thoughts, racing thoughts, and hallucinations

justified off-task time and absences limitations in the RFC, he points to no evidence pertaining

specifically to off-task time and absences that the ALJ overlooked. Because the ALJ did not

overlook any evidence in formulating the RFC, Plaintiff’s argument is reducible to a request to

reweigh the evidence the ALJ already considered. The Court has explained above that it is not

permitted to reweigh the evidence. For this and the foregoing reasons, the Court will affirm the

ALJ’s decision.