FOGAL v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

HARRY ELWOOD FOGAL, II, ) Case No. 3:21-cv-34

)

Plaintiff, ) JUDGE KIM R. GIBSON

)

v. )

)

KILOLO KIJAKAZI, )

)

Defendant. )

MEMORANDUM OPINION

Title Il of the Social Security Act entitles insured persons with disabilities to receive

disability insurance benefits (“DIB”). See 42 U.S.C. § 423. The present action stems from

Administrative Law Judge John A. Fraser's (“the ALJ”) denial of an application for DIB by

plaintiff Harry Elwood Fogal, III (“Mr. Fogal”), (ECF No. 8-2 at 11-28), which Mr. Fogal has

appealed to this Court. (ECF No. 3). Mr. Fogal has moved for summary judgment on this appeal,

seeking reversal of his application’s denial. (ECF No. 10). The Acting Commissioner of the Social

Security Administration (“SSA”), Kilolo Kijakazi (“Commissioner”), opposes Mr. Fogal’s appeal

on behalf of the SSA and has also moved for summary judgment. (ECF No. 13).1 Reviewing the

decision under 42 U.S.C. § 405(g), the Court AFFIRMS that decision, DENIES Mr. Fogal’s

motion for summary judgment, and GRANTS the Commissioner’s motion for summary

judgment.

I, BACKGROUND

1 The ALJ denied Mr. Fogal’s DIB application on behalf of the Commissioner, but the Commissioner is also

a party seeking to defend the AL}’s (and her own) denial of Mr. Fogal’s application on behalf of the SSA.

The Court will attempt to minimize any confusion stemming from the Commissioner’s dual role by

identifying the ALJ as the adjudicator whose findings the Court is currently reviewing, and the

Commissioner as the litigant who is defending those findings on appeal.

On or about March 23, 2018, Mr. Fogal was admitted to the Conemaugh Memorial Medical

Center after suffering a “cerebrovascular accident” —i.e., a stroke. (ECF No. 8-9 at 18). Mr. Fogal

was discharged from this first hospital to a second one—the University of Pittsburgh Medical

Center—on March 26, 2018, (id. at 53-54), where he remained until his discharge on April 2, 2018.

(ECF No. 8-8 at 153). Following his stroke, Mr. Fogal began exhibiting a condition of “left-sided

weakness” caused by stroke-related neurological damage, also known as “left hemineglect,” (ECF

No. 8-7 at 133), as well as severe fatigue. (ECF No. 8-8 at 157-62). On April 11, 2018, Mr. Fogal

was referred to occupational therapy by his primary care physician, William Pham, DO (“Dr.

Pham”), and he began participating in weekly therapy sessions with Lynn Lightfoot-Garbarino,

OTR/L, CLT (“Ms. Lightfoot-Garbarino”) to treat his left hemineglect, fatigue, and other post-

stroke sequelae. (ECF No. 8-8 at 153-54). After Mr. Fogal underwent a stent implantation on

May 30, 2018, (id. at 25), he began making noticeable progress in his recovery. (Id. at 156). Mr.

Fogal continued exhibiting “[g]radual improvement” in his therapy sessions with Ms. Lightfoot-

Garbarino throughout the summer of 2018, (see id. at 164), and he was “released to go back to

work with no restrictions” on August 14, 2018. (Id. at 165). On September 18, 2018, Mr. Fogal

was discharged from occupational therapy based on the progress of his recovery. (Id. at 166).

On November 29, 2018, Mr. Fogal applied for DIB under Title II of the Social Security Act,

initially claiming a disability onset date of February 2, 2018. (ECF No. 8-2 at 14; ECF No. 8-5 at

1-5) (He later amended this date to March 25, 2018). (ECF No. 11 at 15). On April 15, 2019, an

? The Court notes that Mr. Fogal was represented by legal counsel throughout his DIB application process.

On November 28, 2018, Mr. Fogal engaged the attorneys of Berger & Green P.C. to “represent [him] in [his]

claim for Disability Benefits under the Social Security Act.” (ECF No. 8-4 at 2). (See also id. at 4) (form dated

November 28, 2018, engaging Cynthia C. Berger of Berger & Green to represent Mr. Fogal before the SSA).

SSA Disability Examiner found that Mr. Fogal was not disabled and denied his application. (ECF

No. 8-3 at 14; ECF No. 8-4 at 6-10). On April 17, 2019, Mr. Fogal submitted a Disability Appeal,

requesting a hearing before an Administrative Law Judge. (ECF No. 8-4 at 11). On May 7, 2020,

the ALJ held a telephonic hearing on Mr. Fogal’s appeal. (ECF No. 8-2 at 34-55). On May 29,

2020, the ALJ issued a decision finding that Mr. Fogal was not disabled. (ECF No. 8-2 at 14-28).

On June 29, 2020, Mr. Fogal submitted a request for review of the ALJ’s decision by the SSA

Appeals Council. (ECF No. 8-4 at 100-01). The Appeals Council denied this request for review

on January 13, 2021. (ECF No. 8-2 at 2-8).

On March 8, 2021, Mr. Fogal filed a complaint with this Court, appealing the ALJ’s denial

of his DIB application under 42 U.S.C. § 405(g). (ECF No. 3). Both parties have filed motions for

summary judgment and supporting briefs. (ECF Nos. 10-11, 13-14).

II. LEGAL STANDARD

When reviewing an ALJ’s denial of DIB, the Court must base its review on the record of

the administrative proceedings and the pleadings of the parties. 42 U.S.C. § 405(g). The Court’s

review of legal issues is plenary, but its review of factual findings is limited. Schaudeck v. Comm’r

of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). The Court must determine whether the ALJ applied

the proper legal standards in making his decision, and whether the record contains substantial

On February 26, 2020, Mr. Fogal appointed William J. Remaley of Berger & Green as an additional

representative. (Id. at 62).

3 On April 29, 2019, Mr. Fogal mailed a notice of his objection to a telephonic hearing and requested that

his hearing before the ALJ be conducted in-person. (ECF No. 8-4 at 37). On February 21, 2020, the SSA

scheduled a hearing before the ALJ to be held in-person on May 7, 2020. (Id. at 39-45). On April 17, 2020,

Mr. Fogal requested that this hearing be converted back to a telephonic hearing. (Id. at 66). On April 20,

2020, the SSA sent Mr. Fogal an Amended Notice of Hearing informing him that his hearing on May 7,

2020, would be held telephonically. (id. at 67~71).

evidence supporting the AL)’s factual findings. See Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.

2001).

With respect to the Court’s review of legal issues, the Court must “review the AL]’s

application of the law de novo.” Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007). The

proper legal standard for assessing disability is a five-step sequential evaluation process that

considers whether a claimant: (1) is working, (2) has a severe impairment, (3) has an impairment

that meets or medically equals the requirements of an impairment listed in the regulations and is

considered per se disabling, (4) can return to his past relevant work, and (5) if not, whether he

can perform other work. See 20 C.F.R. § 404.1520(a)(4). See also Zirnsak v. Colvin, 777 F.3d 607,

611-12 (3d Cir. 2014).

With respect to the Court’s review of factual findings, the claimant must show at Steps

One through Four that the ALJ’s decision was not based on “substantial evidence.” 42 U.S.C. §

405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). (The burden of proof shifts to the

Commissioner at Step Five). Hess v. Comm’r of Soc. Sec., 931 F.3d 198, 201 (8d Cir. 2019).

“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation

omitted); Jesurum v. Sec’y of the U.S. Dep’t of Health & Human Serovs., 48 F.3d 114, 117 (3d Cir. 1995).

This evidentiary burden is more than a mere scintilla, but less than a preponderance of the

evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). If the AL]J’s factual findings were

reached according to the correct legal standards and are supported by substantial evidence, the

Court is bound by them, “even if [it] would have decided the factual inquiry differently.”

Fargnoli, 247 F.3d at 38.

DISCUSSION

Having reviewed the relevant materials —i.e., the evidentiary record, the ALJ’s decision,

the parties’ motions for summary judgment, and their briefs in support thereof—the Court finds

that the AL] applied the correct legal standard and determined that Mr. Fogal was not entitled to

DIB based on factual findings supported by substantial evidence. Mr. Fogal levels five arguments

against the ALJ’s decision, all of which essentially relate to the ALJ’s choice not to rely on an

assessment of Mr. Fogal conducted by Dr. Pham on December 21, 2018. Given that this

assessment is the primary piece of record evidence supporting Mr. Fogal’s DIB application, it

comes as no surprise that the ALJ's choice to disregard this assessment is Mr. Fogal’s target on

appeal. For the reasons offered below, the Court finds that the ALJ did not err in disregarding

Dr. Pham’s assessment, and this finding leads the Court to reject Mr. Fogal’s remaining

arguments.

a. The ALJ did not err in disregarding Dr. Pham’s December 2018 assessment

Mr. Fogal argues that the ALJ erred “by mischaracterizing the findings and opinions of

Dr. William Pham, treating primary care physician, in determining invalid reasons

(supportability and consistency) for the ALJ’s not persuasive determination in derogation of the

Commissioner’s regulations 20 C.F.R. § 404.1520c.” (ECF No. 11 at 3). At issue here is an

assessment by Dr. Pham from December 21, 2018, finding that Mr. Fogal was still exhibiting

significant impairment of his functional capacity at that time. (ECF No. 8-9 at 179-80). Although

this assessment captures Mr. Fogal’s condition at a single point in time, Mr. Fogal asserts that it

is evidence of his impairment “for a continuous period of time following his brain stroke on

March 25, 2018[,] through June 14, 2019.” (ECF No. 11 at 15). Mr. Fogal’s impairment was a

combination of (a) “significant” or “marked” left hemineglect, (b) severe fatigue, and (c) other

post-stroke cognitive impairment. (Id. at 15-16). Although the record seems to suggest that Mr.

Fogal recovered from these various impairments at different points in time, the thrust of his

argument is that some combination of these impairments left him unable to work for nearly

fourteen months. For simplicity’s sake, the Court will refer to the collective effect of these

impairments as Mr. Fogal’s “alleged disability.”

Mr. Fogal seeks DIB for the period of time between March 25, 2018, and June 14, 2019, but

he need not have been disabled for that length of time in order to receive DIB. Under the Social

Security Act, a claimant is not “disabled” unless he is “unable to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment . . . which has

lasted or can be expected to last for a continuous period of not less than 12 monthsJ[.]” 42 U.S.C.

§ 423(d)(1)(A). Based on an onset date of March 25, 2018, Mr. Fogal would have to show that he

was continuously incapable of working until at least March 25, 2019, to be entitled to any sum of

DIB.* Accordingly, evidence relevant to the Court's review is that reflecting whether Mr. Fogal’s

impairments left him incapable of working until at least March 25, 2019.

As noted, the primary evidence supporting Mr. Fogal’s alleged disability is Dr. Pham’s

December 2018 assessment. (ECF No. 8-2 at 23). In this assessment, Dr. Pham wrote that Mr.

Fogal had been “only able to tolerate 2 hours of work before feeling excessively fatigued[,]” (id.

at 179); was “[s]till having significant left hemi-neglect on exam” that was “grossly unchanged

over the past two visits[,]” (ECF No. 8-9 at 180); and still had “some cognitive impairment that

4 This is the minimum that Mr. Fogal must demonstrate; he could, of course, be entitled to a greater sum of

DIB if he established a disability extending beyond March 25, 2019.

may now be permanent as he has some delay with processing complex tasks.” (Id. at 179). Mr.

Fogal maintains that he “was still under Dr. Pham’s marked left hemineglect limitations” until at.

least June 14, 2019. (ECF No. 11 at 15). Although he does not expressly claim that this hemineglect

and the other impairments collectively rendered him incapable of working through March 2019,

this is the necessary implication of his assertion that “Dr. Pham’s report of December 21, 2018,

opining [that Mr. Fogal] experiences fatigue and requires rest periods during the day along with

his significant marked left hemineglect, requires a finding of disability.” (Id. at 15-16) (emphasis

added).

However, medical assessments from March 2019 indicate that Mr. Fogal had largely

recovered from his impairments by that time. On March 21, 2019, Dr. Joseph Tavares found in a

consultative evaluation that, although Mr. Fogal “still has some weakness on his left side[,]” he

was generally “doing well” in terms of strength and mobility. (ECF No. 8-9 at 128, 131).

Specifically, Dr. Tavares found that Mr. Fogal had a normal gait, could walk on his heels and toes

without difficulty, could perform a full squat, could stand normally without the use of assistive

devices, needed no help changing for the examination or getting on and off the exam table, and

was able to easily rise from his chair. (Id. at 130). He also found that Mr. Fogal had “[h]and and

finger dexterity intact,” was “able to button, zip and tie[,]” and had a 4/5 left-handed grip strength

(compared to his 5/5 right-handed grip strength). (Id. at 131).

On the same date, Mr. Fogal underwent a “Mental Status Evaluation” with Gina

Lombardi, M.A. (ECF No. 8-9 at 145). Ms. Lombardi, a psychologist, found that Mr. Fogal had

intact attention and concentration, and that was he generally able to function normally in his daily

life.

He is able to dress, bathe, and groom himself. He does do laundry occasionally.

He will go shopping with his girlfriend. He cooks, cleans, manages his money,

and does not drive. ... Hobbies and interests are golf, and he spends most of his

time watching TV, or doing things around the house that he is able to do.

(Id. at 147).

The ALJ understood the assessments of Dr. Tavares and Ms. Lombardi (along with other

pieces of medical evidence cited in the AL]’s decision) to be “inconsistent with [Mr. Fogal’s]

alleged limitations” with regard to the “intensity, persistence, and limiting effects” of Mr. Fogal’s

impairments. The ALJ considered Dr. Pham’s assessment but found it

not persuasive due to overstatements and because both opinions are based on a

fictional [sic] of a need for limitations for the right hand and arm. Nothing in the

record shows difficulties using the right hand and arm. These opinions attribute

the claimant’s right sided limitations to the claimant's left side hemiparesis, which

leaves [his] right sided limitations unsupported. Further, Dr. Pham’s limitations

on the right hand and arm are flatly contradicted by his treatment notes. Records

from July 2018 forward show the only residual effect of the stroke is some left

handed weakness and limits on manipulation (handling and fingering) on the left.

(ECF No. 8-2 at 26). In addition, the ALJ found Dr. Pham’s assessment that Mr. Fogal was still

suffering from “extreme mental health limitations” in December 2018 to be similarly “not

persuasive due to the detailed findings of [the other] neurologists and associated studies ... .”

(Id.). The ALJ consequently disregarded Dr. Pham’s December 2018 assessment in his analysis

and ultimately concluded that Mr. Fogal’s “impairments and restrictions . .. would not prevent

[him] from performing” unskilled, light-level work. (Id.).

Mr. Fogal disputes the propriety of the ALJ's choice to disregard Dr. Pham’s December

2018 assessment, but he leaves somewhat unclear the precise basis of his opposition. He asserts

at one point that the ALJ “mischaracteriz[ed] the findings and opinions of Dr. William Pham...

in determining invalid reasons (supportability and consistency) for the ALJ’s not persuasive

determination ....” (ECF No. 11 at 3). Elsewhere, however, he asserts that the ALJ altogether

failed to factor Dr. Pham’s assessment into his analysis. (Id. at 17) (“The ALJ’s lack of analysis of

Plaintiff's marked left hemineglect disorder by Dr. William Pham . . . violates the AL]’s duty to

analyze all medical evidence.”). Still elsewhere, Mr. Fogal asserts that “[t]here is no contrary

medical evidence that the ALJ accepted to rebut Dr. Pham’s treating physician findings of [Mr.

Fogal’s] marked left hemineglect condition[,]” while also recognizing that “[t]he opinion of the

treating physician is entitled to more weight than that of a one-time consultative examiner, a

medical advisor or other non-examining physician.” (Id. at 16-17). Mr. Fogal appears to be

arguing that Dr. Pham’s assessment is an “acceptable medical source,” (id. at 17), while the

assessments of Dr. Tavares and Ms. Lombardi are not, and that it was therefore improper for the

AL] to credit the latter over the former (if, indeed, it was proper to consider the latter as medical

evidence at all). (See id. at 16).

If Mr. Fogal is indeed arguing that the assessments of Dr. Tavares and Ms. Lombardi are

not “acceptable medical sources” that the ALJ could weigh against Dr. Pham’s assessment, this

argument would be unavailing. Although the assessment of a primary treating physician

receives a degree of deference, at least insofar as it reflects “expert judgment based on a

continuing observation of the patient's condition over a prolonged period of time[,]” Morales v.

Apfel, 225 F.3d 310, 317 (3d Cir. 2000), the assessments of doctors more tangentially related to the

patient's treatment can still serve as acceptable forms of medical evidence. See id. (noting that an

ALJ can base his decision on the opinion of “a non-treating, non-examining physician”). ALJs

may also consider the opinions of psychologists like Ms. Lombardi and weigh their credibility

against that of medical doctors. See Cunningham v. Comm’ of Soc. Sec., 507 F. App’x 111, 119 Gd

Cir. 2012). It was not merely permissible for the ALJ to consider both of these assessments; as Mr.

Fogal acknowledges, the ALJ has an affirmative duty to analyze all medical evidence in the

record. (ECF No. 11 at 17) (citing Reefer v. Barnhart, 326 F.3d 376, 381-82 (3d Cir. 2001)).

When faced with conflicting evidence, ALJs must make factual findings about credibility

that, like any other factual findings, must be supported by substantial evidence. Ejiofor v. Attorney

Gen. of U.S., 408 F. App’x 588, 588 (3d Cir. 2010). “When a conflict in the evidence exists, the ALJ

may choose whom to credit but ‘cannot reject evidence for no reason or for the wrong reason.’”

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason v. Shalala, 994 F.2d 1058, 1066

(3d Cir. 1993)). The ALJ must consider all the evidence and give some reason for discounting the

evidence he rejects. Id. So long as an adverse credibility finding is supported by “sufficient,

cogent reasons|,]” the Court will afford this finding “substantial deference[.]” Butt v. Gonzales,

429 F.3d 430, 434 (3d Cir. 2005). In other words, its credibility findings must be supported by

substantial evidence. Ejiofor, 408 F. App’x at 588.

Here, the assessments of Dr. Tavares and Ms. Lombardi provide “sufficient, cogent

reasons” for the ALJ’s determination that Dr. Pham’s December 2018 assessment was not credible.

Butt, 429 F.3d at 433. Affording this determination “substantial deference[,]” Ejiofor, 408 F. App’x

at 588, the Court finds no error in the ALJ’s subsequent choice to disregard Dr. Pham’s

assessment.

b. The ALJ did not err in his wording of his hypothetical questions to the

vocational expert

As noted, each of Mr. Fogal’s remaining challenges to the ALJ’s decision are premised on

his position that the ALJ erroneously declined to base his decision on Dr. Pham’s December 2018

assessment. The first of these challenges is Mr. Fogal’s argument that the ALJ “erred in his

hypothetical questions to the vocational expert by failing to include any limitations from

Plaintiff's marked left hemineglect, i.e., unaware of objects to Plaintiff's left side, due to sequela

from Plaintiff's brain stroke.” (ECF No. 11 at 3). At issue is the following hypothetical posed by

the ALJ to a vocational expert:

Please assume a hypothetical individual of the Claimant's age, education, and job

background. Further assume that this hypothetical individual is able to work at

the light exertional level. This person is able occasionally to climb ladders and

scaffolds, to kneel and to crawl. This person is able frequently to climb ramps and

stairs, to balance, stoop, and crouch. On the left side, in other words, with the left

hand, this person is able occasionally to reach, handle, finger, and feel. This person

is able to tolerate occasional exposure to unprotected heights, moving machinery,

humidity, extreme cold, and vibrations. This person is right-hand dominant ....

Is this hypothetical individual able to perform the past relevant work as a

construction laborer?

(ECF No. 8-2 at 51-52). The vocational expert responded, “No.” (Id. at 52). The ALJ then asked

the vocational expert whether the person described in this hypothetical would be able to perform

past work as a construction laborer on a limited six-hour workday. (Id. at 53). The vocational

expert again responded, “NoJ,]” but added that such a person could perform unskilled, light-

level work, such as the work of a conveyor-line worker or a machine tender. (Id. at 52-53).

Mr. Fogal argues that “a remand is required if the ALJ determines in a decision that a

functional limitation exists if that limitation was not included in the hypothetical question to the

vocational expert.” (ECF No. 11 at 16) (citing Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004)).

He further argues that “the vocational expert should have considered Plaintiff's failure to be

aware of objects to his left from his marked left hemineglect[,]” and that, because the AL]’s

questioning did not feature a hypothetical individual suffering from this impairment, this

questioning did not “accurately portray the claimant's impairments” or allow the vocational

expert “the opportunity to evaluate those impairments as contained in the record.” (Id.).

Notwithstanding Mr. Fogal’s assertion that the ALJ “did not submit [his] brain stroke

sequela of left sided hemineglect to the vocational expert for his consideration[,]” (ECF No. 11 at

15), what he is actually challenging here is the ALJ’s decision not to submit evidence of marked

left hemineglect to the vocational expert. After all, the ALJ’s hypothetical individual—who only

“occasionally” is able “to reach, handle, finger, and feel” on his left side— evidently suffered from

some degree of hemineglect. (ECF No. 8-2 at 51-52). Mr. Fogal insists that “the vocational expert

should have considered [his] marked left hemineglect[,]” as the condition was described in “Dr.

Pham’s treating physician findings[.]” (ECF No. 11 at 16) (emphasis added). He argues, in other

words, that the ALJ should have described a hypothetical individual to the vocational expert who

was suffering from the impairments attributed to him by Dr. Pham in the December 2018

assessment.

To determine whether the ALJ worded his hypothetical improperly, the Court must

determine whether the impairments described by Mr. Fogal are both medically established and

supported by the record, since hypothetical questions may only describe impairments with both

characteristics. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). An ALJ posing

hypotheticals is not required “to submit to the vocational expert every impairment alleged by a

claimant.” Id. (emphasis original). Rather, “the hypotheticals posed must accurately portray the

claimant’s impairments” and. give the vocational expert “an opportunity to evaluate those

impairments as contained in the record” that constitute “credibly established limitations.” Id.

(emphasis original). Generally, a limitation is “credibly established” when “medically supported

and otherwise uncontroverted in the record.” Rutherford, 399 F.3d at 554. However, limitations

that are medically supported but contradicted by other evidence “may or may not be found

credible[.]” Id. In such circumstances, the decision to accept or reject a limitation is left to the

ALJ's discretion, and the Court will “not substitute [its] own judgment for that of the fact finder.”

Zirnsak v. Colvin, 777 F.3d 607, 615-16 (3d Cir. 2014) (citing Rutherford, 399 F.3d at 554).

The Court found in Section IH.a that the ALJ did not err in finding Dr. Pham’s December

2018 assessment incredible. Based on this finding, the Court further finds that the ALJ did not

err in concluding that the limitations described in this assessment were not “credibly established”

and declining to factor those limitations into his hypothetical.

c. The ALJ did not err in determining that Mr. Fogal was capable of performing a

reduced range of unskilled, light-level work

Mr. Fogal challenges the ALJ’s determination at Step Five that he “has the capability to

perform unskilled light occupations with an SVP of two as conveyor line worker DOT #524.687-

022, machine tender DOT #569.686-046 and conveyor tender DOT #921.685-046.” (ECF No. 11 at

11) (citing ECF No. 8-2 at 27-28). According to Mr. Fogal, “Dr. Pham’s report of December 21,

2018],] opining [that he] experiences fatigue and requires rest periods during the day along with

his significant marked left hemineglect, requires a finding of disability.” (Id. at 15-16). “Surely[,]”

he reasons, “[my] inability to be aware of objects to [my] left in the workplace is a significant

functional limitation, which would preclude work performance.” (Id.).

Because the ALJ did not err in disregarding Dr. Pham’s December 2018 assessment, he

also did not err in disregarding the functional limitations described therein. As for the medical

evidence that the ALJ did consider, this evidence provides a substantial basis for concluding that

12

Mr. Fogal was capable of performing unskilled, light-level work earlier than March 25, 2019.

Therefore, the Court finds that the ALJ did not err in making such a finding.

d. The ALJ did not err in finding that Mr. Fogal was not disabled for a continuous

closed period of time from March 25, 2018, to June 14, 2019

Mr. Fogal maintains that was unable to engage in substantial gainful activity from his

disability onset date of March 25, 2018, until June 14, 2019, when Dr. Pham noted his “markedly

decreased left hemineglect[.]” (ECF No. 11 at 15). The evidence discussed above was sufficient

to support the ALJ’s conclusion that Mr. Fogal was able to perform unskilled, light-level work

within twelve months of his disability onset date. Accordingly, the Court finds that the ALJ did

not err in finding that Mr. Fogal was not, in fact, continuously disabled from March 25, 2018, to

June 14, 2019.

e. The ALJ’s decision was based on substantial evidence

Lastly, Mr. Fogal argues that the ALJ’s decision “is not based on substantial evidence.”

(ECF No. 11 at 3). This conclusory argument, provided without additional support or

explanation, is clearly insufficient to satisfy the burden of proof that Mr. Fogal bears at each step

of the ALJ’s analysis except Step Five. Hess, 931 F.3d at 201. As for Step Five, the Court found in

Section III.c, supra, that the ALJ's factual finding at that step was indeed supported by substantial

evidence. Therefore, the Court rejects this argument as well.

An appropriate order follows.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

HARRY ELWOOD FOGAL, III, ) Case No. 3:21-cv-34

)

Plaintiff, ) JUDGE KIM R. GIBSON

)

v. )

)

KILOLO KIJAKAZI, )

)

Defendant. )

ORDER

i}

grr:

AND NOW, this ~? day of June, 2023, upon consideration of Plaintiff's request for

Judicial Review pursuant to 42 U.S.C. § 405(g), IT IS HEREBY ORDERED that the decision of

the ALJ is AFFIRMED.

IT IS FURTHER ORDERED that Mr. Fogal’s motion for summary judgment at ECF No.

10 is DENIED.

IT IS FURTHER ORDERED that the Commissioner’s motion for summary judgment at

ECF No. 13 is GRANTED.

BY THE COURT:

a Atty. oO i! BP UM A

4 .

KIM R. GIBSON

UNITED STATES DISTRICT JUDGE