BRINK v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JODI BRINK o/b/o Z.R.B., a minor )

)

Plaintiff, )

)

v. ) Civil Action No. 20-1171

)

KILOLO KIJAKAZI,1 )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 29th day of March, 2022, 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 on

behalf of Z.R.B., a minor child, under Subchapter XVI of the Social Security Act, 42 U.S.C.

§ 1381, et seq., finds that the Commissioner’s findings are supported by substantial evidence

and, accordingly, affirms.2 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,

1 Kilolo Kijakazi is substituted as the defendant in this matter, replacing former

Commissioner Andrew Saul pursuant to Federal Rule of Civil Procedure 25(d) and 42 U.S.C. §

405(g). The Clerk is directed to amend the docket to reflect this change.

2 Defendant asks the Court to tax costs against Plaintiff but does not advance an argument

in support of that request. Accordingly, the Court will award no 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).

nor reverse, merely because it would have decided the claim differently) (citing Cotter v. Harris,

642 F.2d 700, 705 (3d Cir. 1981)).3

3 Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in finding that Z.R.B.

did not meet a listing and in determining that he does not functionally equal a listed impairment.

The Court disagrees with Plaintiff and finds that the record demonstrates that substantial

evidence supports the ALJ’s finding that Plaintiff is not disabled under the Social Security Act.

The Court will therefore affirm.

Plaintiff’s first argument is a bit hard to understand. She seems to argue that because the

ALJ found that Z.R.B. had the severe impairments of attention deficit hyperactivity disorder

(“ADHD”), oppositional defiance disorder (“ODD”), and autism that it was inconsistent for the

ALJ to find that Z.R.B. did not meet the A criteria of Listings 112.08, 112.10, and 112.11, 20

C.F.R. Part 404, Subpart P, Appendix 1. However, this is not an accurate description of the

ALJ’s findings. Nothing indicates that the ALJ found that Z.R.B. did not meet any listing

specifically because his symptoms were insufficient to meet the A criteria for those listings. (R.

15). In fact, by referring to his further discussion later in the decision, where he discussed the six

domains of functionality set forth in 20 C.F.R. § 416.926a(a)(1) and Social Security Ruling 09-

1p, he appears to indicate that he was evaluating the B criteria for Listings 112.08, 112.10, and

112.11. Indeed, the B criteria for these listings – which is the same for all three – correlates very

closely with the six domains of Section 416.926a. A fair reading of the decision is that the ALJ

found that, much like Z.R.B. had less than marked limitations or better in each of the six

domains, he likewise did not have two marked, or one extreme, limitations in the areas of mental

functioning set forth in part B of the listings. It is important to remember that to meet a listing, a

claimant must “present medical findings equal in severity to all the criteria of a listed

impairment.” Degenaro-Huber v. Comm’r of Soc. Sec., 533 Fed. Appx. 73, 75 (3d Cir. 2013)

(quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in the original)). It really does

not matter whether the ALJ found that Z.R.B. did or did not meet the A criteria for Listings

112.08, 112.10, and 112.11 as long as he found that Z.R.B. did not meet the B criteria for the

listings.

The Court further notes that, in any event, a finding of the severe impairments of ADHD,

ODD, and autism at Step Two is not inherently inconsistent with a finding that these severe

impairments do not satisfy the A criteria of Listings 112.08, 112.10, and 112.11 in any event.

Part A of the listings does not require the ALJ to render a diagnosis as to a claimant’s medical

conditions, but rather a determination as to whether the documented conditions demonstrated

certain symptoms sufficient to meet the listings. Plaintiff’s assertion, citing to no legal support,

that any claimant with the severe impairments of ADHD, ODD, and autism necessarily meets the

A criteria of Listings 112.08, 112.10, and 112.11 is simply not correct.

Plaintiff also argues that the ALJ improperly relied on the fact that the state reviewing

agents, Arlene Rattan, Ph.D., and Dilip S. Kar, M.D., did not conclude that Z.R.B. met a listing

(R. 176-77) because they did not examine or treat Z.R.B. and because they did not have access to

record evidence post-dating this opinion. Plaintiff’s first contention is simply wrong; an ALJ

certainly may, and in fact must, consider the opinions of non-treating, non-examining agents. See

Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). An ALJ is even entitled to

give such an opinion greater weight than the opinion of a treating physician in certain

circumstances. See Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000); Dula v. Barnhart, 129

Fed. Appx. 715, 718-19 (3d Cir. 2005); Salerno v. Comm’r of Soc. Sec., 152 Fed. Appx. 208 (3d

Cir. 2005). The fact that neither of the state reviewing agents examined or treated Z.R.B. thus

did not prevent the ALJ from considering their opinion.

Moreover, the fact that the state reviewing agents’ opinion was rendered before other

evidence became available does not mean the ALJ was prohibited from affording it substantial

weight. Chandler, 667 F.3d at 361 (“The Social Security regulations impose no limit on how

much time may pass between a report and the ALJ's decision in reliance on it.”). Indeed, this is

the case in the vast majority of social security cases. The ALJ had access to, and in fact

discussed, this later acquired evidence and considered it in his analysis. It is important to note

that the ALJ did not at all simply follow the state reviewing agents’ opinion; he thoroughly

discussed and based his decision on the record as a whole.

Plaintiff’s second argument fares no better. Plaintiff argues that the ALJ erred in finding

that Z.R.B. did not functionally equal a listed impairment because he did not have marked or

greater limitations in two, or extreme limitations in one, of the six domains – i.e., (1) acquiring

and using information; (2) attending and completing tasks; (3) interacting and relating with

others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health and

physical well-being. However, in doing so, Plaintiff merely offers her own evaluation of the

record evidence and her own conclusion that this evidence demonstrates that Z.R.B.’s

impairments functionally equal a listed impairment. In essence, Plaintiff is not really contending

that the ALJ considered improper or inaccurate evidence in making the findings in this case, but

rather that the evidence should be read to support her conclusions rather than his. However, 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. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986);

Berry, 738 F. Supp. at 944 (citing Cotter, 642 F.2d at 705). Further, “[t]he presence of evidence

in the record that supports a contrary conclusion does not undermine the [ALJ’s] decision so

long as the record provides substantial support for that decision.” Malloy v. Comm’r of Soc.

Sec., 306 Fed. Appx. 761, 764 (3d Cir. 2009).

Here, the ALJ considered and accurately characterized all the record evidence. The

Court can find no way in which the ALJ’s analysis was in any way improper. He, in fact,

expressly discussed all of the Exhibits that Plaintiff contends support a different finding. The

fact that there could be alternative views as to what the evidence shows, as discussed, does not

allow the Court to disturb the ALJ’s decision. Substantial evidence therefore supports his

determination especially in light of the United States Supreme Court’s reminder that the

threshold for meeting the substantial evidence standard “is not high.” Biestek, 139 S. Ct. at

1154.

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

Judgment (document No. 39) is DENIED and that Defendant’s Motion for Summary Judgment

(document No. 41) is GRANTED as set forth herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

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

evidence supports the ALJ’s decision and therefore affirms.