COPPER v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT COPPER, JR. )

)

Plaintiff, )

)

v. ) Civil Action No. 22-89

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 28th day of July, 2023, 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 disability insurance 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 argues that the Administrative Law Judge (“ALJ”) erred in failing to account for

all of the work-related limitations caused by his migraine headaches in formulating his residual

functional capacity (“RFC”), as well as the hypothetical question to the vocational expert. In so

arguing, he asserts that the ALJ improperly assessed his testimony, as well as the medical

evidence, and that she erred in her consideration of his ability to engage in certain activities of

daily living. The Court finds no merit in these arguments and further finds that substantial

evidence supports the ALJ’s determination of Plaintiff’s RFC and her ultimate conclusion that

Plaintiff is not disabled.

Plaintiff asserts that consistent evidence supports his testimony regarding the debilitating

symptoms caused by his migraines, the ineffectiveness of medication in treating the headaches,

and the impact of his condition on his daily life. He claims that his subjective complaints are

consistent with statements of his treating physicians, family members, and a former employer.

He further argues that his testimony, thus supported, cannot be rejected based on the “mere

absence of objective evidence.” (Doc. No. 13, p. 17). However, the ALJ addressed all of these

issues, and her conclusions are supported by substantial evidence.

Since the nature of Plaintiff’s alleged limitations are based largely on his own statements,

the Court first notes that an ALJ’s consideration of a claimant’s testimony is still often referred

to as a “credibility” determination, although that term has been eliminated from the

Commissioner’s policy concerning “subjective symptom evaluation.” Schneider v. Berryhill,

No. CV 17-1299, 2019 WL 698471, at *2 (W.D. Pa. Feb. 20, 2019) (citing SSR 16-3p, 2016 WL

1119029 (S.S.A. Mar. 16, 2016)) (explaining SSR 16-3p “clarif[ied] that the subjective symptom

evaluation is not an examination of an individual’s character”). The manner of the evaluation,

though, remains unchanged in most ways, and many concepts that applied when the evaluation

was considered to be one of credibility continue to apply now.

Here, the ALJ found Plaintiff’s migraine headaches to constitute a severe impairment and

clearly acknowledged Plaintiff’s testimony regarding the impact of these migraine headaches,

including allegations of confusion. (R. 17, 18-19, 21-26). She then proceeded to consider this

testimony in light of all of the record evidence, finding that Plaintiff’s migraines did cause some

symptoms but that Plaintiff’s statements concerning the intensity, persistence, and limiting effects of

the symptoms were not entirely consistent with the record evidence. At no point did the ALJ isolate

any of the underlying facts and indicate that this factor alone showed that Plaintiff’s statements were

not entirely consistent with the record evidence. Instead, the ALJ considered all of the evidence in

context and explained how it impacted her findings.

More specifically, the ALJ addressed the evidence that Plaintiff cites as consistent with his

testimony. For instance, the ALJ expressly considered the statement of Nickolas Summa, Ph.D.,

Plaintiff’s therapist, that he should be approved for disability. (R. 1295). However, the ALJ

found the statement to be unpersuasive, as it was unsupported by objective medical evidence,

including a complete lack of treatment records from Dr. Summa himself, and was inconsistent

with the longitudinal record. (R. 19). The Court further notes that statements such these – that a

claimant is disabled or unable to work – are not generally relevant, as such findings are reserved

to the Commissioner. See 20 C.F.R. § 404.1520b(c)(3)(i). The ALJ similarly addressed the

opinions attached to Plaintiff’s personal statement, those of Jennifer Douglas, M.D. (R. 1081-

82), and Donna Sheetz, PA-C (Doc. No. 1037-38), that he was limited to a range of sedentary

work or less, finding them to be unpersuasive, as they were unsupported by objective medical

evidence and inconsistent with the record. (R. 23).

In so doing, the ALJ discussed the various aspects of the record she found to be

inconsistent with Plaintiff’s testimony and the statements of his treating sources. The ALJ

contrasted Plaintiff’s alleged confusion with mental status findings and neurological and clinical

findings, including reports of good concentration. (R. 18-19). She detailed the inconsistencies in

Plaintiff’s claims about his headaches at significant length, specifically citing statements made

that were inconsistent as to the origin, frequency, and severity of his migraine symptoms. She

further discussed Plaintiff’s overall improvement while acknowledging that the path was not

always straight, in part because of occasional compliance issues. (R. 21-26). It is beyond

dispute that an ALJ can, and in fact must, consider such evidence in evaluating a claimant’s

subjective testimony about the intensity, persistence, and limiting effects of his or her symptoms.

See 20 C.F.R. § 404.1529(c)(4); SSR 16-3p. The ALJ further found the opinions of the state

agency consultants to be generally persuasive and to support the RFC findings. (R. 27). She

considered and discussed statements from Plaintiff’s family and prior employer. (R. 27). Far

from rejecting Plaintiff’s testimony regarding the limiting effects of his migraines based on the

“mere absence of objective evidence,” the ALJ evaluated his claims in light of the record as a

whole.

The ALJ also considered Plaintiff’s activities of daily living in reaching her decision.

Plaintiff argues that the ALJ relied on his supposed ability to compile a detailed personal

statement in finding that he was less limited than alleged, but that the ALJ “failed to consider

that this evidence was not produced by Plaintiff, but by his wife.” (Doc. No. 13, p. 16).

However, as the Commissioner points out, the letter from Plaintiff’s wife indicating that she had

produced this material was not submitted to the ALJ, but to the Appeals Council (R. 548), so this

evidence was not before the ALJ at the time of her determination. It is axiomatic that such

evidence cannot be considered by a district court in its determination of whether or not the ALJ’s

decision was supported by substantial evidence. See Matthews v. Apfel, 239 F.3d 589, 594 (3d

Cir. 2001); Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 360 (3d Cir. 2011). The record

before the ALJ provided no indication that anyone other than Plaintiff had completed his

personal statement, and indeed, he signed the statement. (R. 1023). Based on the evidence

available to the ALJ, therefore, it appears her assumption that Plaintiff produced this evidence

was well-supported.

Plaintiff does not request a remand on the basis of new evidence under sentence six of 42

U.S.C. § 405(g), which permits a court to remand a case based on new evidence under certain

circumstances. However, even if he had, such a remand would be unwarranted, as Plaintiff has

made no attempt to demonstrate good cause for not having incorporated the new evidence into

the administrative record. See Matthews, 239 F.3d at 594; Szubak v. Secretary of Health &

Human Services, 745 F.2d 831, 833 (3d Cir. 1984). Indeed, it is hard to imagine good cause for

obfuscating the source of Plaintiff’s personal statement by withholding the identity of the true

author until after the ALJ had rendered a decision.

Plaintiff next argues that the ALJ improperly considered his ability to engage in activities

of daily living, claiming that the ALJ relied on his ability to engage in “transient and sporadic

activity as evidence of an ability to engage in work-related activity.” (Doc. No. 13, p. 18).

Similar claims arise in a number of social security disability cases and raise a similar dilemma.

There is, of course, nothing inappropriate with an ALJ considering a claimant’s activities of daily

living in evaluating the severity of the claimant’s symptoms and limitations. In fact, ALJs are

required to do so. See 20 C.F.R. § 404.1529(c)(3)(i); Wright v. Astrue, No. Civ. 10-942, 2011

WL 4079067, at *3 (W.D. Pa. Sept. 13, 2011). However, as Plaintiff points out, in performing

this analysis, an ALJ cannot use evidence of sporadic and transitory activities to demonstrate an

ability to engage continuously in substantial gainful activity. See Fargnoli v. Astrue, 247 F.3d

34, 40 n.5 (3d Cir. 2001). The question here, as in many cases, is whether the ALJ’s proper

consideration of Plaintiff’s daily activities veered into an improper reliance on sporadic and

transient activities. Here, it did not.

The ALJ’s consideration of Plaintiff’s activities of daily living in this matter was

comprehensive and fairly addressed the nature of those activities. She expressly discussed

Plaintiff’s ability to care for his personal needs independently, to perform a number of chores

and errands at least on occasion, and to drive without restrictions, as well as his ability to use a

computer frequently and to interact regularly with others. (R. 26). While Plaintiff may

characterize some of the daily activities to which the ALJ cited as sporadic or transitory, his

characterization does not necessarily make them such. The Court further notes that Plaintiff

again relies on the argument that it was his wife, and not him, who completed his personal

statement. As discussed above, the record before the ALJ suggested nothing other than that

Plaintiff had produced this material, and she correctly attributed the activity of creating such

complex material to Plaintiff. Moreover, the ALJ did not rely solely on Plaintiff’s activities of

daily living in evaluating Plaintiff’s testimony or in otherwise engaging in her analysis, but

rather properly treated these as one of several factors for consideration.

It is important to remember that, while a claimant’s testimony regarding his or her subjective

complaints is certainly relevant, an ALJ is not under an obligation to simply accept what the claimant

said without question. See 20 C.F.R. § 404.1529(c)(4); Chandler, 667 F.3d at 363. Moreover, where

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). The Court finds that such

deference is warranted in this case. See also Paula R. v. Comm’r of Soc. Sec., No. CV 20-18808

(RBK), 2022 WL 950242, at *5 (D.N.J. Mar. 30, 2022) (“Credibility determinations are ‘virtually

unreviewable on appeal.’” (quoting Hoyman v. Colvin, 606 Fed. Appx. 678, 681 (3d Cir. 2015))).

The Court again emphasizes that the ALJ based his decision on the entire record. She did not

discount Plaintiff’s headaches all together, and in fact, expressly accounted for his migraines in

formulating the RFC, including limitations to account for his issues with concentration. (R. 21).

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 Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C.

§ 405(g)); 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).

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

Judgment (document No. 12) is DENIED and that Defendant’s Motion for Summary Judgment

(document No. 14) is GRANTED.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

Plaintiff further contends that the ALJ incorrectly characterized his RFC as allowing for a

range of light work, when it more accurately described a range of sedentary work. However,

Plaintiff does not dispute that the jobs in the national economy that the ALJ found Plaintiff could

perform were sedentary in any event. Indeed, the vocational expert addressed this issue at the

hearing, and her testimony that a hypothetical individual could perform the sedentary jobs of

addresser, ticket checker, and polisher were based on the very RFC which the ALJ ultimately

formulated. (R. 66-68).

Accordingly, the Court finds that the ALJ applied the proper legal standards and that

substantial evidence supports her findings. The Court will therefore affirm.