HENNING v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SUSAN HENNING, ) Case No. 3:20-cv-188

)

Plaintiff, ) JUDGE KIM R. GIBSON

)

Vv. )

)

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 Susan Henning (“Ms. Henning”), (ECF No. 18-2 at 12-21), which Ms. Henning has

appealed to this Court. (ECF No. 1). Ms. Henning has moved for summary judgment on this

appeal, seeking reversal of her application’s denial. (ECF No. 31). The Acting Commissioner of

the Social Security Administration (“SSA”), Kilolo Kijakazi (“Commissioner”), opposes Ms.

Henning’s appeal on behalf of the SSA and has also moved for summary judgment. (ECF No.

33).! Reviewing the ALJ’s decision under 42 U.S.C. § 405(g), the Court AFFIRMS that decision,

DENIES Ms. Henning’s motion for summary judgment, and GRANTS the Commissioner’s

motion for summary judgment.

I. BACKGROUND

1 The ALJ denied Ms. Henning’s DIB application on behalf of the Commissioner, but the Commissioner is

also a party seeking to defend the ALJ’s (and her own) denial of Ms. Henning’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 August 3, 2018, Ms. Henning applied for DIB under Title II of the Social Security Act,

claiming a disability onset date of August 26, 2006. (ECF No. 18-5 at 4-13). On October 16, 2018,

an SSA Disability Examiner found that Ms. Henning was not disabled and denied her application.

(ECF No. 18-3 at 14). On December 18, 2018, Ms. Henning submitted a Disability Appeal,

requesting a hearing before an Administrative Law Judge. (ECF No. 18-4 at 9). On February 6,

2020, the ALJ held a hearing on Ms. Henning’s appeal. (ECF No. 18-2 at 41-86). On March 2,

2020, the ALJ issued a decision finding that Ms. Henning was not disabled. (Id. at 12-21). On

March 31, 2020, Ms. Henning submitted a request for review of the ALJ’s decision by the SSA

Appeals Council. (ECF No. 18-4 at 48-50). The Appeals Council denied this request for review

on July 15, 2020. (ECF No. 18-2 at 2-8).

On September 18, 2020, Ms. Henning filed a complaint with this Court, appealing the

denial of her 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. 31-34). The parties agree that

this case turns ona single question: whether substantial evidence supports the ALJ’s finding that

Ms. Henning failed to meet her burden of showing that her impairments were per se disabling.

(ECF No. 32 at 7; ECF No. 34 at 3).

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

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 □□□□□

application of the law de novo.” Poulos v. Comm’ 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).2 “Substantial evidence” is “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 Servs., 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 ALJ’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.

2 The burden of proof shifts to the Commissioner at Step Five. Hess 0. Comm’r of Soc. Sec., 931 F.3d 198, 201

(Gd Cir. 2019).

DISCUSSION

As noted, the sole dispute between the parties is whether the AL)’s finding at Step Three

of his disability analysis that none of Ms. Henning’s disabilities were per se disabling is supported

by substantial evidence. An ALJ considers at Step Three the “medical severity” of a claimant's

impairments by assessing whether those impairments meet or equal the requirements of an

impairment listed under 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Appendix 1”). 20 C.F.R.

§ 404.1520(a)(4)(iii). If the claimant’s impairments meet or equal the requirements of a listed

impairment, “then [the claimant] is per se disabled and no further analysis is necessary.” Plummer

v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999) (italics original). The claimant “bears the burden of

presenting ‘medical findings equivalent in severity to all the criteria for the one most similar

impairment.” Lent v. Berryhill, No. 3:18-CV-1533, 2019 WL 1896547, at *1 (M.D. Pa. Apr. 29, 2019)

(citing Sullivan v. Zebley, 493 U.S. 521, 531 (1990)) (emphasis original); 20 C.F.R. § 416.920(d).

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

substantial evidence supporting the AL]’s factual findings at Step Three. The ALJ found that the

severity of Ms. Henning’s mental impairments did not meet or medically equal the “paragraph

B” criteria of listings 12.04, 12.06, 12.08, and 12.15. (ECF No. 18-2 at 15). To satisfy the paragraph

B criteria, the mental impairments must result in one “extreme” limitation or two “marked”

limitations in a broad area of functioning. Appendix 1. An extreme limitation is the inability to

function independently, appropriately, or effectively, and on a sustained basis; a marked

limitation is a seriously limited ability to do so. Id.

Ms. Henning argues that the evidence that the ALJ cites as the basis for his factual finding

at Step Three “is not substantial evidence, particularly as it is in conflict with the medical evidence

of [her] mental impairments.” (ECF No. 32 at 9). She largely bases this argument on the

assessment of Deanna Rezk, CRNP (Certified Registered Nurse Practitioner), who was Ms.

Henning’s former treatment provider at the Community Guidance Center. (Id. at 11-13). In this

assessment, Nurse Rezk opined that Ms. Henning has extreme limitations in virtually every

work-related capacity. (ECF No. 18-10 at 92-93). The ALJ found that this assessment was “not

persuasive as [it is] not supported and consistent with the overall evidence of record.” (ECF No.

18-2 at 19) (citing ECF Nos. 18-6 at 28-45, 18-8 at 92-93, 18-10 at 92-94). He elaborated:

The extreme limitations opined by [this source are] inconsistent with the

claimant’s treatment history and mental status examination findings. For

example, the record showed improvement in the claimant’s symptoms with

medication. The claimant testified that she sees a nurse practitioner at Nulton for

medication management but no longer sees a therapist. She has had no inpatient

psychiatric hospitalizations.

(Id.) (citing ECF Nos. 18-9 at 10-26, 18-10 at 2-91).

Indeed, the documents relied upon by the ALJ indicate that Ms. Henning’s impairments,

while existent, do not necessarily have the intensity and persistence that Nurse Rezk’s assessment

suggests. Ms. Henning offered responses to a certain questionnaire that evidence a capacity to

handle basic responsibilities reliably and independently. (See ECF No. 18-6 at 29-34, 38-39).

Specifically, Ms. Henning reported the following capacities: she can clean herself, do laundry,

prepare meals, and perform other household tasks. (Id. at 30-31). She feeds and cleans after her

pet animals. (Id. at 30). She can perform minor repairs around her home and does some lawn

mowing. (Id. at 31). She regularly goes grocery shopping and is able to pay bills, count change,

handle a savings account, and use a checkbook. (Id. at 32). Ms. Henning can also follow spoken

instructions with a “medium” degree of success, and she can follow written instructions “pretty

well” when the instructions relate to matters of interest. (Id. at 34). Elsewhere, she “reported

babysitting and enjoying [that] work ‘for the most part[.]’” (ECF No. 18-10 at 69).

Additionally, treatment records from the Nulton Diagnostic & Treatment Center

(“Nulton”) indicate that Ms. Henning’s mental health improved in response to medication. (See

ECF No. 18-10 at 83) (Ms. Henning “knows she is better on [medication]”); (id.) (reporting that

“medication is working” but “just not enough”). Her medication noticeably reduced the feelings

of irritability and aggression that Ms. Henning identifies as the greatest obstacles to her

employability. (See id. at 69) (reporting “feeling more ‘calm’ and not so angry all the time” after

going on medication). Indeed, throughout her treatment with Nulton in 2019, Ms. Henning was

consistently described by her treatment providers as attentive, friendly, and cooperative. (See id.

at 8, 21, 30, 60, 70, 75, 85).

The thrust of Ms. Henning’s argument is that the evidence detailed above is non-medical

and therefore cannot serve as independent bases for the ALJ to discount the medical evidence that

is Nurse Rezk’s assessment. (See ECF No. 32 at 15). However, the distinction between medical

and non-medical evidence is irrelevant here. When the opinions of nurse practitioners are offered

to show “the severity of [an] impairment[] and how it affects [a claimant's] ability to work[,]” 20

C.E.R. § 404.1513(d), an ALJ must evaluate such evidence by considering, inter alia, how

consistent the evidence is “with the record as a whole[,]” id. § 404.1527(c)(4), as well as “any

factors ... which tend to support or contradict the medical opinion.” Id. § 404.1527(c)(6). The

evidence that ALJs can consider when reviewing these factors includes non-medical evidence.

See, e.g., Durden v. Colvin, 191 F. Supp. 3d 429, 457 (M.D. Pa. 2016) (noting that “non-medical

evidence is an acceptable reason to assign less weight” to a medical opinion).

The ALJ cited to both the Nulton records and Ms. Henning’s function report as

explanations for his decision to discount Nurse Rezk’s assessment. (See ECF No. 18-2 at 19). This

evidence was part of “the record as a whole” and contradicted the extreme severity that Nurse

Rezk ascribed to Ms. Henning’s impairments. 20 C.F.R. § 404.1527(c). Even assuming that this

evidence is non-medical in the relevant sense, it can nonetheless support an ALJ’s decision to

discount a nurse practitioner’s opinion regarding the severity of a claimant’s impairments, as well

as her opinion regarding the claimant's ability to work. See Rickabaugh v. Berryhill, 271 F. Supp.

3d 721, 736 (D. Del. 2017) (finding “substantial evidence support[ing] the ALJ’s determination to

give little weight” to a nurse practitioner’s opinion).

The Court is satisfied that the evidence cited by the ALJ would allow “a reasonable mind

[to] accept [it] as adequate to support a conclusion.” Richardson, 402 U.S. at 401. Specifically, this

evidence is adequate to support the ALJ’s conclusion that Ms. Henning “does not have an

impairment or combination of impairments that meets or medically equals the severity of one of

the listed impairments in [Appendix 1,]” (ECF No. 18-2 at 15), because a reasonable mind could

accept it as adequate to support the conclusion that Ms. Henning has at least a moderate ability

to “function independently, appropriately, or effectively, and on a sustained basis[.]” Appendix

1. The Court finds that the ALJ’s factual findings at Step Three were supported by substantial

evidence, and it accordingly grants the Commissioner’s motion for summary judgment.

An appropriate order follows.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SUSAN HENNING, ) Case No. 3:20-cv-188

)

Plaintiff, ) JUDGE KIM R. GIBSON

)

v. )

)

KILOLO KIJAKAZL )

)

Defendant. )

i ORDER

ay oT

AND NOW, this oH day of August, 2023, upon consideration of plaintiff Susan

Henning’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 Ms. Henning’s motion for summary judgment at ECF

No. 31 is DENIED.

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

ECF No. 33 is GRANTED.

BY THE COURT:

SL A geen \ nm

KIM R. GIBSON

UNITED STATES DISTRICT JUDGE